A TREATISE 



ON THE 



LAW OF ELECTIONS 



TO 



PUBLIC OFFICES, 

EXHIBITING THE 

EXILES AND PEINOIPLES 

APPLICABLE TO 

CONTESTS BEFORE JUDICIAL TRIBUNALS 

AND 

PAELIAMEINTAET BODIES, 

INCLUDING PROCEEDINGS BY 






QUO WARRANTO INFORMATION, INJUNCTION, 
MANDAMUS, AND INDICTMENT, 



BASED ON THE 



AMERICAN, ENGLISH, SCOTCH, IRISH, AND CANADIAN AUTHORITIES. 



By HALBERT E. PAINE, 

OF THE WASHINGTON BAR. 



WASHINGTON, D. C. 

Wm. H. Morrison, Publisher. 
1888. 



tN 



o^> 



tf-v 



Entered according to the Act of Congress, in the year 1887, by Halbert E. Paine, in the Office of 
the Librarian of Congress, at Washington. 



GIBSON BROS. 

rRINTFR 1 - AND BoOKBINPFRc 

Warhincton, D. C. 









PEEFACE. 



The primary object of this treatise is to facilitate the prep- 
aration, trial, and adjudication of contested election cases, by 
affording to the bench and bar convenient access to all the 
American, English, Scotch, Irish, and Canadian authorities, 
bearing upon the questions involved in contests, on quo 
warranto informations, and by statutory proceedings, before 
the courts, and in contests before parliamentary bodies and 
special tribunals. 



TABLE OF CONTENTS 



CHAPTEK I. 



THE RIGHT OF SUFFRAGE; POWER TO GRANT, WITHHOLD, AND REG- 
ULATE THE RIGHT, AND TO PRESCRIBE QUALIFICATIONS AND 
DISQUALIFICATIONS FOR ITS EXERCISE. 



1. 



2. 



3. 



Srcs 
Nature, origin, exercise, and reg- 
ulation of the right . . 1-3 
Objects of its exercise : election 
of officers, and determination 
of questions submitted to the 
electors ..... 4 
Power to confer, or withhold the 
right, and to prescribe qualifi- 
cations and disqualifications 
for its exercise . . . 5-8 
The ballot and the viva voce vote 9 
Effect of article 1, section 2, of 
the constitution of the United 
States .... .10 
Effect of article 14 of the amend- 
ments ..... 11 



Secs. 



7. 



Effect of article 15 of the amend- 
ments . .... 12 

8. Effect of article 1, section 3, of 

the constitution . . .13 

9. Effect of article 4, section 3, as 

to the territories . . .14 

10. Effect of article 1, section 8, as 

to the District of Columbia . 15 

11. Restriction of the right of suf- 

frage to males not in conflict 
with article 14 of the amend- 
ments . . . . .16 

12. Military and naval sites and res- 

ervations, in the states 17, 18 

13. Military and naval sites and res- 

ervations, in the territories 19-21 



CHAPTER II. 



QUALIFICATIONS OF VOTERS; CITIZENSHIP. 



1. Citizenship not always a qualifi- 

cation for the exercise of the 
right of suffrage . . 22-24 

2. Acquisition of citizenship : 

(1) By birth, 

(a) In the United States . 25 

(b) Of American parentage, 

in foreign countries . 26, 27 



(2) By naturalization. 

(a) Of the individual voter ; 

(1) Power of congress : . 28 

(2) Tribunal : . 29-31 

(3) Proceedings ; rules : 32-34 

(b) Of parents of voter . 35 
Proof of citizenship ; before 

boards of registration ; at the 
polls ; in contested cases 36-41 



CHAPTER III. 



QUALIFICATIONS OF VOTERS; 

1. In general, their nature and dif- 
ferences. 
(1) Meaning of the terms 



RESIDENCE, DOMICILE, INHABITANCY. 



. 42 

(2) Residence generally a quali- 
fication . . . .43 

(3) Domicile . . . 44,45 

(4) Intention . . . 46-51 

(5) Residence of family . 52 

(6) Temporary absence . 53-55 

(7) Time and place of residence, 56-59 



2. Indian reservations . . 60, 61 

3. Forts, arsenals, and navy yards, 62-64 

4. Military reservations, in the ter- 





ritories .... 


. 65 


5. 


Paupers .... 


66,67 


6. 


Railway and canal laborers 


. 68 


7. 


Students .... 


69,70 


8. 


Soldiers • . . . 


71-74 



VI 



TABLE OF CONTENTS. 



CHAPTEE IV. 



QUALIFICATIONS OF VOTERS : MISCELLANEOUS. 



1. Age . 

2. Race . 

3. Sex . 

4. Property 



Secs. 
. 75 
76-80 

81,82 
83-85 



Secs. 

5. Payment of tax . . . 86-92 

6. Housekeepers and heads of fam- 

ilies 93 

7. Test oath 94 



CHAPTEE V. 



DISQUALIFICATIONS OF VOTERS. 



1. Idiots and lunatics 


. 95 


2. Criminals 


. 96 


3. Deaf-mutes 


. 97 


4. Deserters . 


. 98 


5. Indians 


. 99 


6. Paupers 


. 100 



7. Polygamy, duellists, wagers . 101 

8. Rebellion . .. . .102 

9. Bribery 103 

10. Peerage 104 

11. Office-holders . . . . 105 



CHAPTEE VI. 



RIGHT OF REPRESENTATION IN LEGISLATIVE BODIES: RIGHT TO 
ELECT EXECUTIVE AND JUDICIAL OFFICERS. 



. Right of representation in the 
congress of the United States. 

(1) States in general . . . 106 

(2) New states . . • .107 

(3) States in insurrection . 108, 109 

(4) Reconstructed states . .110 

(5) Territories . . . 111-117 

(6) District of Columbia . . 118 



Right of representation in state 
legislatures . . . 119,120 

Right of representation in terri- 
torial legislatures . . .121 

Right of representation in legis- 
lature of District of Columbia 122 

Right to elect executive and ju- 
dicial officers . . . 123-125 



CHAPTEE VII. 

CREATION AND ABOLITION OF OFFICES. 



1. Public offices defined . . 126, 127 

2. Power to create, abolish, or 

change offices . . • 128 

3. Power to prescribe the mode of 

election, or appointment . 129 

4. Power to fix the terms of offices, 130 



5. Power to prescribe the qualifica- 
tions of officers ; 

(1) Officers in general . . 131 

(2) Members of congress . 182-136 

(3) Territorial delegates . . 137 



CHAPTEE VIII. 

QUALIFICATIONS OF OFFICERS. 



1. Citizenship. 

(1) In general . . . .188 

(2) President, vice-president, sen- 
ators, representatives, and 
delegates . . 139, 140 



2. Residence. 

(1) President, vice-president, and 
members of congress . 141-144 

(2) Members of state legisla- 
tures .... 145-150 
Other officers . . 161, 152 

3. Other qualifications . . 153 155 



TABLE OF CONTENTS. 



Vll 



CHAPTER IX 



DISQUALIFICATION OF OFFICEKS. 



Secs. 



1. Holding incompatible offices, in 

general .... 156, 157 

2. Holding office under the United 





States 




158-164 


3. 


Holding state office 




165-170 


4. 


Prior tenure of same 


office 


171, 172 


5. 

6. 

7. 


Crime, in general 

Bribery 

Duelling 


; 


. 173 

. 174 

175, 176 


S. 
9. 


Polygamy . 
Sale of office 


. 177 

. 178 



Secs. 

10. Rebellion, disloyalty, treason, 

test-oath . . . 179-181 

11. Bankruptcy .... 182 

12. Failure to take the sacrament . 183 

13. Government contracts . . 184 

14. Commission in British army . 185 

15. Pension . . . . .186 

16. Clergyman . . . .187 

17. Pendency of impeachment , 188 

18. Absence from state . . . 189 

19. House of commons . . . 190 



CHAPTER X. 



1. In general . 

2. Commencement of term 



TERM OF OFFICE. 

. 191 ; 3. Duration and end of term . 
192,193 I 4. Vacancy . 



194-210 
211-220 



CHAPTER XI. 



TENURE OF OFFICE. 

1. Induction, oath, bond . 221-223 4. Resignation 

2. Holding over . . . 224-231 

3. Refusal or neglect to qualify : 

declination . . . 232-235 j 5. Forfeiture 



. 236-239 
. 240,241 



CHAPTER XII. 

ELECTIONS FOR DETERMINATION OF QUESTIONS SUBMITTED 

TO VOTERS. 



1. Delegation of legislative 

power .... 242,243 

2. Submission of questions to pop- 

ular vote . . . 244-246 

3. Authority to be strictly pur- 

sued .... 247-249 

4. Validation of elections pre- 

viously held .... 250 

5. Rescission of vote . . . 251 

6. Effect of vote . . . 252-254 

7. Petition for submission to pop- 

ular vote .... 255 

8. Time of election . . . 256 

9. Notice 257 

10. Form of ballot . . . . 258 ' 

11. Number of votes requisite to 

an affirmative decision . 259-261 



12 



13 



Qualifications and disqualifica- 
tions of canvassers . 

Declaration of result and rec- 
ord ..... 

14. Power of town meeting to vote 

money ..... 

15. Military bounty . . 265 

16. Location or change of county 

seat 
Railroad stock and bonds 
Schools 

Public buildings 
Recitals in bonds 

21. Donations and subscriptions 

22. Loan of credit to individuals 



17 

18 
19 
20 



268 
270 
276 

279 



262 
263 

264 

-267 

,269 
-275 

,277 
278 

-281 
282 
283 



Vlll 



TABLE OF CONTENTS. 



CHAPTEK XIII 



POWEK TO REGULATE TIME, PLACE, AND MANNER OF ELECTION. 



Secs. 

1. General, special, regular, annual 

elections ..... 284 

2. Senators and representatives in 

congress. 
(1) Constitution of the United 

States . . . 285-287 



Secs. 



(2) State legislatures 



(3) State constitutions ; ordi- 
nances; schedules . 290-296 



(4) Acts of congress . 

(5) Governors of states 

(6) Indians 



288, 289 i 3. State officers 



. 297 
298, 299 

. 300 
301-308 



CHAPTEE XIY. 

TIME AND PLACE OF ELECTION. 

1. Time. (3) State officers 

CI) In general . . . 309-313 j 
(2) Representatives and delegates 

in congress . . 314-319 j 2. Place . 



320-326 
327-330 



CHAPTEE XV. 

ELECTION DISTRICTS. 



1. Electors of president and vice- 
president, and representatives 
and delegates in congress, 331-336 



2. State officers 



337-339 



CHAPTEE XVI 



REGISTRATION. 



1. Constitutionality of registration 

laws .... 340-345 

2. Registration for congressional 

elections ..... 346 

3. Qualification of officers of regis- 

tration 347 

4. Duties 348 

5. Objections and protests . . 349 

6. Refusal to register applicant . 350 

7. Revision of registration . 351-355 

8. Publication of registration list, 356 



9. Application of registration laws 

to particular elections . . 357 

10. Essentials of complete registra- 

tion ..... 358 

11. Votes by persons not registered 

359-:^-2 

12. Effect of registration . 363- 365 

13. Effect of lists as prima facie evi- 

dence ..... 366 

14. Registration set aside by execu- 

tive authority . . . 367 



CHAPTEE XVII 

OFFICERS OF ELECTION. 



1. Apppointment and qualifica- 

tions .... 30S 372 

2. Oath 373,374 

:5. I)e facto officers . .'i7."» 377 

4. When de jure title essential to 

defence ..... :57S 



5. Statutes requiring officers to be 

members of different political 
parties ..... 379 

6. Usurpers and intruders . . 3S0 

7. Mandatory requirements . 381 389 



TABLE OF CONTENTS. 



IX 



CHAPTEE XVIII. 



PRELIMINARY PROCEEDINGS. 



Secs. 

1. Proclamation ; notice . 384-397 

2. Petition of electors . . 398-402 

3. Publication . . . 403-406 

4. Warrant to conform to law 407, 408 



Secs. 

5. Vote to conform to law, procla- 

mation, notice, and warrant, 409-420 

6. Writs .... 421-424 

7. Returns ..... 425 



CHAPTEE XIX. 



PROCEEDINGS. 



1. Vacancies in board, how filled . 426 

2. Nominations and ballot- 

papers . . . . 427-430 

3. Oaths of officers of election, 431-435 

4. Determination of course of pro- 

cedure .... 436-440 

5. Opening polls. 

(1) Time . . . .441, 442 

(2) Place 443 

Ballot-boxes. 

(1) Want of proper ballot-boxes, 444 

(2) Improper position, exposure, 
custody, or location . . 445 

(3) Two or more ballot-boxes, 446, 447 



6 



7. Poll-books 448 

8. Registration lists. 

(1) Use of substitutes for official 

copies .... 449 

(2) Not duly furnished . . 450 

(3) Oaths and proofs, in cases of 

unregistered persons . . 451 

(4) Failure to use registration 

list 452 



9. Tally-sheets 



453 



CHAPTEE XX. 



PROCEEDINGS— Continued. 



1. Ballots. 

(1) Formal requisites . . 454-456 

(2) Mode of depositing . . 457 

2. Challenge of voters . . 458-460 

3. Oaths of voters .... 461 

4. Voting by instalments ; by proxy ; 

change of vote ; pairing . . 462 

5. Recess, or adjournment, pending 

election .... 463-465 



6. Withdrawal of candidate . . 466 

7. Violence and intimidation . 467-471 

8. Undue influence . . . 472 

9. Military interference . 473-476 

10. Election held in only part of 

district .... 477 

11. Exclusion of candidate from 

polls 478 



CHAPTEE XXI 



PRO CEEDINGS— Continued . 



1. Bribery .... 479-492 

2. Personation ; repeating . . 493 



1 3. Wagers .... 494, 495 
I 4. Crime and misconduct . . 496 



CHAPTEE XXII 



PRO CEEDINGS— Continued. 



Mandatory and directory require- 
ments . . . * . 497, 498 

Misconduct of officers of election 
which is fatal to the election, 
or to the return . . 499-501 



3. Irregularities which are not 

fatal .... 502-506 

4. Active partisanship of officers . 507 

5. Intoxication of officers . . 508 

6. Absence of officers . . . 509 



X 



TABLE OF CONTENTS. 



CHAPTEK XXIII. 

PROCEEDINGS— Continued. 

Secs. 

1. Admission of illegal votes . 510-513 3. Closing polls 

2. Exclusion of legal votes . 514-519 

CHAPTEE XXIV. 

PRECINCT CANVASS. 



Secs. 
520-524 



1. Constitution of board 

2. Time and place of canvass 

3. Preliminary duties of canvassers, 

4. Maimer of canvass. 

(1) Form, substance, and requi- 

sites of ballots, and ballot 
papers = 

(2) Marked ballots . . 529- 

(3) Numbered ballots 

(4) Ballots folded together, 536, 

(5) Ballots with initials only of 

christian names . . 538- 

(6) Ballots without christian 

names, or with erroneous 
christian names . 

(7) Ballots with abbreviated 

christian names . . 542, 

(8) Ballots without affix "Junior," 

(9) Ballots with erroneous mid- 

dle names, or without mid- 
dle names .... 
(10) Ballots defective in heading, 
or otherwise. . . 546- 



525 


(11) 


526 




527 


(12) 
(13) 


528 


(14) 


534 




535 
537 


(15) 


540 


(16) 

(17) 


541 


(18) 


543 


(19) 


544 


(20) 


545 


(21) 


-548 


(22) 



Ballots with names not 
spelled like those of candi- 
dates, but idem sonantia . 549 

Ambiguous ballots . 550, 551 

Ballots with too many can- 
didates named . . 552-554 
Ballots Dot containing names 
of residents of different 
counties .... 

Ballots for ineligible candi- 
dates . . . 556- 
Ballots in wrong ballot-box. 

Interlineations, erasures, and 
"pasters" 

Ballots consisting of several 
pieces qf paper 

Ballots designed to deceive 
voters .... 

Ballots without designations 
of terms of office 

Ballots on which names, in- 
correctly registered, are 
printed as registered 

Ballots in wrong envelopes. 



555 

-560 
561 

562 

563 

564 

565 



566 
567 



CHAPTEE XXY. 

PRECINCT CANVASS— Continued. 



Rejection of votes, by precinct 
canvassers .... 568 

Refusal to permit inspection of 
poll-books or ballots . . 569 

Requirements that votes shall be 
" cast up aud set down in writ- 
ing " 570 

Whole number of votes cast ; ma- 
jority ; plurality : tie vote 571-576 

Unauthorized persons taking part 
in canvass .... 577 

Abstracts of precinct canvassers 578 

Determination of result ; certifi- 
cate ; proclamation . . 579,580 

Returns. 

(1) Form; substance ; signatmv : 

record . . .581 583 

(2) Returns for different candi- 

dates not made on separate 
sheets .... 584 

(3) Irregularity, mistake, or neg- 

ligence .... 585 



(4) Failure to make return . 586 

(5) Transmittal of forged returns 587 

(6) Failure to transmit returns 

within prescribed time . 588 

(7) Failure to transmit by lawful 

messenger .... 589 
9. Amended and supplemental re- 
turns .... 590,591 

10. Poll-books and tally-sheets 592-595 

11. Fraud, in canvass or return, by 

preoinot officers . . . 596 

12. Failure to make proper disposi- 

tion of poll-books, registration 
lists, assessment lists, tally- 
sheets, ballots, or ballot-boxes f>*>7 

L3, Election of exoessive or insuffi- 
cient number of officers . 598 
14. Moi*e votes than voters . 599 

l.",. Disregard o\' mandator; or di- 
rectory requirements . . <><H> 



TABLE OF CONTENTS. 



XI 



CHAPTER XXYI. 

COUNTY, CITY, DISTRICT, STATE CANVASS. 



of board 



1. Organization 

rum .... 

2. Powers and duties 

3. Time and place of canvass 

4. Manner of canvass. 
(1) Returns which are to be can- 



Secs. 
quo- 

601, 602 

603-612 

. 613 



Secs. 



vassed, and those which are 

to be rejected . . 614-616 

(2) Failure or exclusion of pre- 

cinct vote or return • . 617 

(3) Correction of precinct re- 

turn ..... 618 

(4) Fundi officio . . 619-621 



(5) Determination of result ; ma- 
jority ; plurality; whole 
number of votes ; tie 
vote .... 622-624 
Certificate ; return ; proclama- 
tion ; credentials: commis- 
sion ; record : double certifi- 
cate ; minutes . . . 625-632 

Abstracts 633 

Refusal, or neglect, to furnish 

credentials .... 634 

Fraud, misconduct, or mistake, 

of canvassers .... 635 
Disposition of documents and 
ballot-boxes . . . 636 



CHAPTER XXVII. 

PRIVILEGES AND REMEDIES OF ELECTORS AND OFFICERS OF 

ELECTION. 



1. Privileges of electors and offi- 
cers ...... 



637 



2. Remedies of electors against offi- 
cers and others . . 638-643 



CHAPTER XXVIII. 

ELECTION OF PRESIDENT AND SENATORS OF THE UNITED STATES. 



1 



Election of president by elec- 
toral colleges. 

(1) Under original constitution . 

(2) Under amendment proposed 

in 1803 .... 

Election of senators. 
(1) Constitution of legislature ; 

dual organization . 646-652 



644 



645 



(2) Time and place of election . 653 

(3) Vote in separate houses, and 

in joint convention . 654-656 

(4) Quorum ; majority ; plural- 

ity ; minority candidate, 657-659 

(5) Act of 1866 . . . 660-665 

(6) Appointment by gov- 

ernor .... 666-668 



CHAPTER XXIX. 

ELECTION OF OFFICERS BY LEGISLATIVE BODIES. 



1. Speaker and other officers of the 

house of representatives of the 
United States .... 669 

2. President and other officers of the 

senate .... 670,671 

3. Speaker and other officers of the 

house of commons of the United 
Kingdom . . . 672,673 



4. Prolocutor or speaker of the house 

of lords . . . . .674 

5. Officers of state senate and house 

of representatives . . . 675 

6. Election of executive or judicial 

officers .... 676-681 



CHAPTER XXX. 

ELECTION OR APPOINTMENT OF PUBLIC OFFICERS BY OTHER 

AUTHORITIES. 

1. By mayor : common council : al- ! 4. Bv justices of the peace . . 694 

dermen .... 682-689 

2. By court of record . . . 690 5. By other public officers . 695-697 

3. By boards of trustees or commis- 

sioners .... 691-693 6. Corrupt agreements . . . 698 



Xll 



TABLE OF CONTENTS. 



CHAPTER XXXI. 

EXECUTIVE APPOINTMENTS. 



1. For full terms 



Secs. 
699-703 



2. To fill casual vacancies 



Secs. 
704-707 



1. By whom removable . 

2. What officers removable 

3. Grounds of removal . 



CHAPTER XXXII. 

REMOVAL OF PUBLIC OFFICERS. 

4. Mode of removal 

5. Revisory power . 

CHAPTER XXXIII. 

ORGANIZATION OF LEGISLATIVE BODIES. 

of state legisla- 



708-714 
715,716 
717-719 



720 
721 



1 . Enrollment of representatives and 

organization of the house of 
representatives of the United 
States .... 722-727 

2. Enrollment of members of the 

house of commons, of the 
United Kingdom . . 728,729 



3. Organization 

tures 

4. Credentials 

5. Oath . 

6. Quorum 



730 
731-738 
739. 740 
741-748 



CHAPTER XXXIT 



RULES OF PROCEDURE AND EVIDENCE. IN CONTESTED ELECTION 
CASES, COMMON TO STATUTORY AND QUO WARRANTO PRO- 
CEEDINGS, AND PARLIAMENTARY CONTESTS. 



1. Power to regulate evidence . 749 

2. Documentarv proofs. 

(1) Transcripts . . . 750-757 

(2) Poll-books; registration 

lists ; original ballots 758-760 

3. Nature, order, and competency 

of evidence .... 761 

4. Presumptions and burden of 

proof .... 762-764 

5. Judicial notice .... 765 

6. Evidence as to qualifications, or 

vote, of voter . . . 766-768 

7. Proof of contents of lost certifi- 

cates, returns, poll-books, and 
tally-sheets .... 769 



8. Hearsay evidence . . . 770 

9. Returns and certificates set 
aside, or contradicted . .771 

10. Ballots contradicted, or ex- 
plained, by extrinsic evidence. 772 

11. Admissions and declarations of 
voters, or of their agents, 773-775 

12. Recount of ballots . . 776-791 

13. Construction and validity of 
election laws and regula- 
tions 792 



1. The tribunal . . . 793-797 

(1) Qualifications: organization; 

oath .... 798,799 

(2) Juried ioti o n, p o w er s , 

duties . . 800-813 : »- 1; '1 >1 . V 



CHAPTER XXXV. 

STATUTORY CONTESTS. 

(, 2) Defects, irregularities, amend- 
ments . . . 839,840 
l. Answer . . . . .841 
849 



81 1 <;. Interlocutory proceedings . 



843 



(:\) Quorum 

2. Parties; relators . 815 817 7 Trial; evidence; verdiot; judg 

;;. Petition and notice, or affi- QA4 a . a 

davil .... 818 B3S ,,u>,,, • • • • 8-W-846 

(1) Time, place, manner, and 8. Appeal ; error; supplementary 

proof of service . *:u 83N proceedings . . .847-1 



TABLE OF CONTENTS. 



Xlll 



CHAPTEE XXXVI 

QUO WARRANTO. 



Secs. 
Difference between the writ of 
quo warranto, and the informa- 
tion in the nature of a quo war- 
ranto .... 854,855 
When an information is or is not 

the proper remedy . . 856-861 
Jurisdiction . . . 862-868 
Parties .... 869-875 
Information ; application ; affi- 
davit . . . . 876-881 
Allowance ; form ; process ; rule 
to show cause : notice . 882-893 



Secs. 
form ; reply ; 

. 894-897 



7. Plea or return 

demurrer 

8. Motion to dismiss or quash . 898 

9. Defence . . . . 899-901 
10. Resignation of defendant, or ex- 
piration of term . . . 902 



11. Trial 

12. Judgment 

13. New trial . 

14. Appeal; error 



903-906 

907, 908 

. 909 

. 910 



CHAPTER XXXVII 

MANDAMUS. 



1. To canvass or re canvass votes or 

returns ; to transmit returns ; 
to issue certificates or commis- 
sions .... 911-927 

2. To admit to office . . 928-930 

3. To make or amend record . . 931 



4. To hold election, or make nomi- 

nation .... 932,933 

5. To deliver up books and papers ; 

to perform other acts . . 934 

6. To try contest 935 

7. Parties, pleadings, and prac- 

tice 936-939 



CHAPTER XXXVIII. 

INJUNCTION, CERTIORARI, EQUITY IN GENERAL, COLLATERAL PRO- 
CEEDINGS, INDICTMENT. 



Injunction. 

(1) To restrain election . . 940 

(2) To restrain canvass . . 941 

(3) To restrain grant of commis- 

sion 942 

(4) To try title to office . . 943 

(5) To restrain exercise of official 

functions, pendente lite . 944 

(6) To restrain collection of tax 

voted ..... 945 



(7) To restrain prosecution of 

contest or removal of officer, 946 



2. Certiorari . . . . 947,948 

3. Equity in general . . . 949 

4. Collateral proceedings . 950-953 

5. Indictment. 

(1) Voters .... 954-962 

(2) Officers of election . 963-966 



CHAPTER XXXIX. 

PARLIAMENTARY CONTESTS. 



Power of legislative bodies to 
judge of the elections, returns, 
and qualifications of their mem- 
bers. 

(1) In the United States . . 967 

(2) In England . . . 968,969 
Exercise of the power . . 970 
Regulations prescribed by acts 

of congress, of parliament, and 
of state legislatures . . 971-974 
Parliamentary rules . . . 975 



5. The committee of elections of 

the house of representatives 

of the United States . 976,977 

6. The committee of elections of 

the house of commons of the 
United Kingdom . . . 978 

7. Withdrawal of petition, or no- 

tice 979 

8. Right of members to vote in 

their own cases . . . 980 



XIV 



TABLE OF CONTENTS. 

CHAPTEK XL. 



PARLIAMENTARY CONTESTS— Continued. 
1. Nature of prima fade title 



Secs. Secs. 

981 | 2. Proof of prima facie title . 982-995 



CHAPTEK XLI 



PARLIAMENTARY CONTESTS— Continued. 



1. Notice of contest. 

(1) Form and substance . 996 

(2) Time, place, and manner of 

service . . 1002 

(3) Proof of service . 

(4) Defects; irregularities ; 

amendments 

(5) Withdrawal of notice . 

2. Protest of electors . 1009 

3. Answer; form . . . . 

4. Res judicata . . 1014 

5. Proofs. 
(1) Depositions . . 1021 



1001 

1005 
1006 

1007 
1008 
■1012 
1013 
-1020 



(2) Documentary proofs . . 1032 

(3) Ex parte affidavits . . 1033 

(4) Census reports . . . 1034 

(5) Muster-rolls . . . 1035 

(6) Proceedings of legislative, 

executive, or judicial au- 
thorities of state . . 1036 
6. Construction of state laws . 1037 



7. Stipulations 

8. Laches 



9. Trial 
-1031 10. Subsequent proceedings 



1038, 1039 
. 1040 
. 1041 
. 1042 



CHAPTEK XLII. 

DEATH, RESIGNATION, OR EXPULSION OF PARTIES TO CONTEST; 
PUNISHMENT OF RECUSA'NT WITNESSES ; COSTS AND COM- 
PENSATION. 

1. Death, or resignation of '3. Punishment of recusant wit- 

party .... 1043-1046 nesses .... 1055-1057 

2. Expulsion . . . 1047-1054 4. Costs and compensation . 1058-1070 



TABLE OF CASES. 





Secs. 




i 


3ecs. 


A 




Arnold v. Champney 
Arris v. Lea 




538 
498 


Abbe of Fountains 


375 


Stukeley 




1062 


Abbott's case 


559, 563 


Ashby v. White 




639 


Abbott v. Frost 483, 


487, 788 


Ashfield case 




536 


Strata Marcella 


899 


Ashmore v. Lees 




100 


Abendroth v. Greenwich 


248 


Aston Union case 




859 


Abington v. North Bridgewater 


45 


Atherford v. Beard 




494 


Acklen v. Darrall 327, 


635, 776 


Athlone election 




548 


Adams' case 


160, 390 


Attorney-General v. Bank 




896 


Adams v. Wilson 


562 


Barstow, 603, 


606 


Wooldridge 


495 


615, 622, 


,771. 


,794 


Adcock v. Lecompt 


823 


855, 865, 


872, 


878 


Aiken's case 


158 


896, 


898 : 


,907 


Ainslie v. Martin 


26 


Blossom 




865 


Albany v. Derby 


27 


Brunst 




205 


Albee v. May 


819 


Clarendon 




946 


Alcorn v. Hamer 


242 


Crocker 


370, 


372 


Aldridge v. Hurst 


1007 


Davy 




682 


Alexander v. McKenzie 


130, 794 


Elderkin 




634 


Allen's case 


528 


Ely 550, 


552, 


593 


Allen v. Crow 


841 


Guardians 




264 


Crowley 


780 


t Insurance Co. 


855 


v Hearn 

Inhabitants of Jay 


494 


Mayor 




933 


283 


Norwich 




264 


Louisiana 


248 


Atwood v. Lincoln 




416 


State 


376 


Augustin v. Eggleston 394. 


445 


,571 


Alter v. Simpson 


860 


Aulanier v. Governor 




375 


Alvord v. Collin 


486 


Aurora v. West 




270 


Ames' case 


142 


Austin's case 




160 


Ames v. Beebe 


353, 785 


Austin v. Helms 




436 


Kansas 


855 


Railway Co. 




366 


Anderson v. Colson 


928 


State 




91 


Dunn 


1057 


Sweet 




783 


Milliken 


80, 641 








Andrews' case 


147 


B 






Andrews v. Hearne 


494 








Saucier 


339 


Babbitt's case 




117 


Anonymous 


23, 221 


Babcock v. Lamb 




814 


Applegate v. Eagan 529, 496, 


548, 827 


Bacon v. Beachly 




638 


Application 


637 


Commissioners 


603, 


, 608 


Arbuckle v. Innes 


816 


Bailey's case 


143. 


, 559 


Archer v. Allen 


1031 


Bailey v. Fisher 




375 


Armstrong v. Treasurer 


762 


Baird v. Bank 


371, 


, 375 


Reports of Election Cases not ln general use. 







1 Bart., 2 Bart.: Cases in congress. D. W. Bartlett. 

C. & H. : Cases in congress. Clark & Hall. 

C. S. & J.: Cases in the legislature of Massachusetts. L. S. Cushing, C. W. Storey, 

and L. Josselyn 
1 Ells., 2 Ells.: Cases in congress. J. H. Ellsworth. 

L. & R.: Cases in the legislature of Massachusetts. E. P. Loring, C. T. Russell. 
Smith : Cases in congress. J. M. Smith. 
Taft : Cases in U. S. senate. G. S. Taft. 



XVI 



TABLE OF CASES. 



Baker's case 
Baker v. Hunt 
Kansas 
Kirk 
Long 



Secs. 

48, 162 

90, 514, 545, 781 

842 
203, 205 

842, 850 



Baldwin v. North Bradford 266, 399 

Trowbridge 73, 292 

Ball?;. Warren 414 

Balman v. Megowan 601, 602, 801 

Bancroft v. Dumas 243 

Bank v. Bronson 750, 754 

Brown 242 

Chester 375 

Iola 250 

Peele 542 

State 855 

St. Joseph 762 

White 750 

Banks' case 884 

Banks v. Walker 41 

Barada v. Carondelet 223 

Barbin v. Secretary of State 611 

Barbour v. Camden 249 

Barker v. People 131, 173 

Barnardiston v. Soames 968 

Barnes v. Adams 68. 102, 373, 431, 510 

999 

Supervisors 242 

Barnett v. Gilmore 851 

Barnum v. Gilman 559, 879 
Barr's case 499, 510, 514, 762 

Barry's case 409 

Barry's Lessee v. Rhea 750 

Bartholomew v. Harwinton 266 

Barto v. Himrod 242 

Barton v. Kalloch 702 

Bassett's case 160 

Bassett v. Bayley 464 

Batcheller's case 83 

Bateman's case 654 

Bates' case 322 

Bates v. Watson 495 

Batman v. Megowan 834 

Batturs v. Megary 510, 827 

Baxter's case 108 

Baxter v. Brooks 808, 811, 1064 

Baylis v. Cochran 1021 

Beach's case 296, 424 

Beale v. Smith 997 

Thompson 425, 1021 

Beal v. Morton 405 

Kay 405, 928, 942 

Bean v. Tucker 788 

Bearce v. Fossett 393 
Beardstown v. Virginia 22, 30. 37, 773 

774, 792 

Beauchamp v. Maresfield 104 

Beaumont v. Barrett 1057 

Beck v. Plummer 584 

Belchertown case 582 

Bell v. Morrison 1021 

Pike 931 



Bell v. Snyder 363, 449. 517, 518, 773 

775, 1003, 1024 
Bemis v Becker 750 

Benesh v. Booth 349 

Bennett v. Chapman 61, 633 

Hethrington 400, 401 

Benson's case 630 

Bentley v. Phelps 378 

Bernard v. Hoboken 1066. 

Bernier v. Russell 638 

Berryman v Wise 376 

Bester's case 885 

Bevard v. Hoffman 641 

Biddle v. Richard 30, 87, 113 

Willard 206, 214, 238 

Wing 71, 99, 516, 525, 1033 
Biggerstaff v. Commonwealth 461 

Binet v. Giroux 797 

Bird v. Merrick 380, 399 

Bisbee v. Finley 361, 467, 517, 581. 596 

' 974 

Hull 751 

Bishop's case 754, 979 

Bissell v. City 952 

Black v. Cohen 259 

Weathers 309 

Blackburn v. Vick 805, 813 

Blackwell v. Thompson 950, 957 

Blair's case 666 

Blair v. Barrett 431,433, 373, 551, 756 

775, 1026, 1034 

Ridgely 94 

Blake's case 510 

Blakey v. Golladay 473, 1046 

Blanchard v. Stearns 641 

Bland County Judge's case 204 

Bledsoe's case 239 

Blight's Lessee v. Rochester 761 

Blodgett v. Holbrook 264 

Blount's case 107, 1051 

Blucket v. Blizzard 682 

Blush v. Colchester 416 

Bogy's case 654 

Boileau's case 508. 577 

Boles v. Edwards 1024, 1025, 1026 

Bolton v. Martin 1057 

Bonner v. State « 690 

Bonzano's case 109 

Booth v. Woodbury 250 

Boren v. Smith 949 

Borer v. Kolars 809 

Borgstede v. Clark 936, 938 

Boring v. Griffith 813, 815 

Borough of Calne 934 

Boston election 105 

Boston v. Wilson 207 

Botts ®. Jones 369. 373, 431, 999, 1036 

1039 
Bouanchaud ». D'Hebert 169 

Bouldin v. Lockhart 269 

Bourland r. Hildreth 73 

Bourne's case 523, 996 



TABLE OF CASES. 



XV11 







Secs. 


Bovee v. McLean 


- 


759 


Bowen v. DeLarge 


1028, 


1049 


Hixon 




848 


Bowker's case 




559 


Boyd v. Beck 




48 


Kelso 




153 


Boyden v. Shober 


178, 446 


, 634 


Boynton v. Loring 


350, 548 


1,551 


Bradfield v. Wort 




547 


Bradley v. Aid rich 




904 


Baxter 




242 


Slemons 




1023 


Sylvester 




859 


Brady v. Howe 




703 


Sweetland 




944 


Bragdon's case 




403 


Bragg's case 




1050 


Braley v. Dickinson 




394 


Branding v. Barrington 




792 


Branham v. Long 




228 


Brassard v. Langevin 




472 


Bratton v. Seymour 




539 


Breed's case 




502 


Brett v. Robinson 




482 


Bridge v. Lincoln 




85 


Oakey 




639 


Bridgeport v. Railroad Co. 


250, 575 


.623 


Brigham's case 




452 


Bright's case 664, 685, 1018, 


1050 


Brinkley v. Bedford 




193 


Brisbin v. Cleary 




535 


Brockenbrough v. Cabell 


588 


, 617 


Brockville case 


792 


, 857 


Brodie v. Campbell 




192 


Bromberg v. Harralson 




762 


Brooke v. Widdicombe 




209 


Brooks v. Davis 974, 1024, 


1027 


Biwer v. O'Brien 202, 


603, 608 


, 928 
936 


Brown's case 




158 


Brown v. Apsden 




1015 


Davis 




792 


Foot 




202 


Grover 




717 


Hicks 




750 


Hixon 




619 


Leeson 




494 


Lunt 




375 


Spilling 




32 


Brownlee's case 




32 


Brumfitt v. Bremner 




358 


Bruyeres v. Halcomb 




978 



Bryan v. Cattell 128, 157, 164, 376, 1064 

Walton 376 

Buchanan v. Manning 467, 517 

Buckland v. Goit 822 

Bucknam v. Ruggles 375 

Buckner v. Gordon 86 

Budge v. Andrews 152, 847 

Bull v. Read 242 

Bunn v. Riker 494, 495 

Burch v. Keeler 494 



Burch v. Van Horn 
Burdett v. Abbott 
Burgoyne v. Collins 
Burke v. Elliott 

Supervisors 
Burkett v. McCarty 
Burks v. Hinton 
Burleigh v. Armstrong 
Burlington v. Bensley 
Burnap's case 
Burnham v. Morrissey 
Burns v. Young 
Burrill's case 
Burt v. Babbitt 

Gott 
Burton v. Patton 
Bush v. Monroe county 
Butler v. Lehman 

Pennsylvania 
Butterworth's case 
Buxton v. Garfil 
Byington v. Vandever 
Byler v. Asher 
Byrne v. State 

C 

Caale v. Harrington 
Cadwallader v. Howell 
Calais v. Marshfield 
Caldwell's case 
Cameron's case 
Campbell v. Gordon 
Cannon's case 
Cannon v. Campbell 
Canterbury case 
Cantwell v. Owens 
Capen v. Foster 
Carlton v. People 
Carpenter's case 502, 765, 
Carpenter v. Ely 
Carriger v. Mayor 
Carroll v. Liebenthaler 
Carrothers v. Russell 
Carson's case 
Carson v. McPhetridge 

Carter v. Harrison 

Mills 
Casement's case 
Castello v. Court 
Cate v. Furber 
Catlin v. Smith 
Cattell v. Lowry 
Caulfield v. Bullock 
Cavanaugh's case 
Cavis v. Robertson 
Cawley v. People 
Cemetery v. Everett 
Cessna v. Myers 
Chandler's case 
Chandler v. Main 



Secs. 

94, 433 

1057 

428 

378 

568, 947 

94, 96 

681 

60, 65 

792 

598 

1057 

531 

120. 

783 

494 

902 

911 

583, 995 

1068 

31 

483, 491, 979 

162 

451 

964, 965, 966 



750 
53 

26 

654 

654, 997 

38, 761 

177 

40, 559. 1032 

556 

704 

340, 342 

375 

824, 825, 829 

538, 772 

261 

1061 

486 

948' 

171, 384, 558 

632 

639 

1042 

117 

823, 848, 935 

891 

87 

258, 275 

638, 639 

107, 991 

387 

233 

420 

42. 50, 66 

473 

73 



XV111 



TABLE OF CASES. 



Secs. 
Chapin v. Snow 544 

Chapman v. Ferguson 431, 538, 541, 544 

1003 

Limerick 425 

Charles v. Manufacturing Co. 25 

Chase v. Miller 42, 46, 72, 73, 947 

Chavis v. Clever 589 

Chenowith v. Commissioners 776, 947 

Chestnut's case 1050 

Chicago v. Gage 222 

Child v. Coburn 418 

Childress v. Cutler 750 

Childrey v. Rady 221 

Childs v. McChesney 39 

Chirac v. Chirac 28 

Chrisman v. Anderson 590, 771 

Christern's case 761 

Christian v. Gibbs 224, 703, 1061 

Christy v. Supervisor 130 

Wimpey 559 

Chumasero v. Gilbert 542 

Potts 603, 926, 927 

Churchill's case 424, 598, 975 

Churchill v. Walker 869, 873 

Citizens v. Sergeant 624 

City v. Butcher 310 

City of La Fayette v. State 384, 394 

City of Lexington v. Butler 952 

City of London v. Wood 980 

City of Lowell v. Hadley 309 

Claflin v. Wood 50, 90, 341, 780 

Claiborne's case 194, 1019 

Clapp v. Sherman 781, 783 

Claridge v. Evelyn 556 

Clark's case 31, 603, 626, 962 

Clark v. Board Examiners 538, 611, 772 

Buchanan 619, 921 

Commonwealth 385 

Hall 633 

Jack 810, 947 

McKenzie 594, 603, 912, 931 

People 888, 899, 894 

Reginam 904 

Robinson 22, 67, 95, 360, 538 

541, 549, 551, 764 

Rochester 242 

Rogers 242, 811 

Salmon 562 

Stanley 126, 213 

Supervisors 384 

Wardwell 425 

Clayton v. Harris 94 

Clement's case 109, 625 

Clementson v. Mason 478 

Clingman's case 1050 

Cobb v. Lucas 544 

Cochrane v. Garrabant 420 

Cochran v. Jones 156, 559 

Cocke's case 107 

Cocke v. Gooch 260 

Halsey 375 

Cockermouth case 556 



Codman's case 


Secs. 
437 


Coffins Coffin 


1057 


Coghlan v. Beard 


787 


Coite v. Wells 


750 


Colden v. Sharpe 
Cole's case 


585 
521 


Coleman's case 


38, 761 


College v. Gore 
Collet v. Collet 


23 
"28 


Collins v. Coggswell 


780, 782 


Douglas 


538 


Huff 


375, 877 


Price 


491 


Tracy 

Colt v. Eves 


709, 711 
309, 625 



Commissioners v. Aspinwall 279, 952 
Blake 1063 

McDaniel 375 

Templer 1063 

Commonwealth v. Aglar 955, 956 

Allen 686, 857, 870 
882 
Athearn 910 

Avery 494 

Bank 897, 898 

Baxter 214, 626, 860 
Beckley 544 

Bennett 243 

Binns 163 

Birchett 855, 900 

Bradford 957 

Brown 855 

Carrigues 808 

Clary 62 

Cluley 559, 879, 890 
Commissioners 498 
625, 855, 873 
Desmond 958 

Doe 243 

Emminger 609 

Fowler 869 

Gale 955 

Gamble 130 

Gill 897 

Gormly 545 

Gray 965 

Hamilton 538 

Hanley 225 

Hawkes 166 

Henszey 808 

Hoke 262 

Hoxey 496 

Jones 800, 884, 890 
960 
Leary 40 

Lee 963 

Leech 808, 860 

Martin 243 

Maxwell 324 

Mayor 621 

McCloskey 798, 855 
McCombs 375 



TABLE OF CASES. 



XIX 



Secs. 

Commonwealth v. Murray 855 

McHale 496, 577 

Meeser 873 

Miller 965 

O'Baldwin 538 

O'Hearn 545 

Parmenter 544 

Perkins 544 

Quarter Sessions 242 

Read 233, 691 

Reigart 890 

Shaver 492 

Shaw 965 

Shearman 545 

Sheriff 31, 40, 765 

Silsbee 496 

Smith 388 

Sprenger 893 

Swazey 902 

Taber 167 

Turner 243 

Twitchell 966 

Wallace 956 

Walter 883 

Woelper 535, 903 

Conant's case 147 

Conger v. Gilmer 693 

Conlin v. Aldrich 524 

Converse v. Fort Scott 254 

Cook's case 520 

Cook v. Burnley 1021 

Cutts * 776, 1006 

Coolidge's case 440 

Coolidge v. Brookline 264 

Cooper v. Slade 484, 489 

Telfair 762 

Coppock v. Bower 979 

Corbin v. Butler 1020 

Corey v. Lugar 795 

Corliss' case 159, 559 

Cornish v. Young 951 

Cotton v. Beardsley 376 

Phillips 158 

Thurland 494 

County v. Boyt 248 

Lewis 270 

County Court v. Sparks 375 

County of Luzerne v. Trimmer 631, 947 

1064 

Courser v. Powers 223 

Coventry case 467 

Cover v. Baytown 265 

Covode v. Foster 66, 71, 95, 499, 517 

518, 596, 981, 1002, 1032 

Cox v. Mt. Tabor 265 

Strait 428, 445, 488, 589 

Crawford v. Dunbar 559 

Molitor 906 

Creighton v. Piper 951 

Cresap v. Gray 588 

Crisler v. Morrison 835, 836 

Crocker v. Crane 814 





Secs. 


Crocker v. Supervisors 


1063 


Crook v. People 


128, 213 


Crosbie v. Hurley 


1061 


Crosby's case 


1057 


Cross v. Mill Co. 


750 


Crouse v. State 


243 


Crowell v. Lambert 


208, 525 


Crowther «. Bradney 


349 


Cullen v. Morris 


639 


Cumming v. Clar.k 


378 


Currey v. Wright 


1062 


Currier's case 


353 


Curry v. Baker 


821 


Miller 


819, 821 


Stewart 


151 


Curtin v. Yocum 341, 


361, 513, 762 


Cushing v. Bedford 


249 


Frankfort 


393 


Cutler's case 


108 



D 



Da Costa v. Jones 494 

Dacres' case 375 

Daily v. Estabrook 61, 99, 334, 589, 633 

769, 1004, 1032 
Dale v. Irwin 30, 66, 67, 69, 70, 329, 360 

537, 838 

Darley v. Reginam 856, 899 

Darling's case 510 

Darragh v. Bird 48, 71, 460, 461, 520 

Darrall v. Bailey 471 

Dart v. Houston 860 

Davenport v. Mayor 160 

Davidsons. Woodruff 751, 840 

Davies v. McKerky 341 

Davis' case 120, 181, 1001 

Davis v. Morris 904 

Moss 871 

Murphy 597, 766, 776 

Wilson 316 

Windsor 414 

Day v. Herod 851 

Jones 836, 847 

Kent 593 

Dean v. Field 547, 618. 776 

De Armand v. State 631 

Delano v. Morgan 382, 465, 478, 569, 593 

760, 768, 773 
Delehanty v. Warner 946 

Dells v. Kennedy 341 

Demarest v. Wickham 815, 816, 932 

Deming's case 96, 767 

Denn v. Reid 792 

Desty's case 761 

Devlin v. Anderson 71 

Dew v. Judges 930 

Deweese v. State 130 

Dickey v. Hulburt 305, 384, 498 

Reed 941, 949 

Dickinson's case 510 

Dixon v. People 873 



XX 



TABLE OF CASES. 



Diggs v. State 
Dillon v. Myers 
Dishon v. Smith 



Secs. 
963 
1061 
257, 384, 394, 431, 486 
581, 716, 943 
Dobyns v. Weaden 504, 558, 842 

Dodd's case 217 

Dodge v. Brooks 499, 773, 775, 1031 

Doerflinger v. Hilmantel 825 



Dolan v. Mayor 
Donahue v. County 
Donelly v. People 
Doran v. De Long 
Dorsey v. Ansley 
Dorst v. Beecker 
Doty v. Jones 
Doughty's case 
Douglas v. Neil 
State 
Wick wire 
Downe's case 
Downing v. Bugar 
Doyle v. Falconer 
Drake v. Merrill 
Draper's case 
Draper v. Johnston 



1061 

714, 718 

894 

813 

877 

138 

211 

928 

375 

1062 

375, 951 

424 

682 

1057 



750, 754 
120, 232, 403, 438 
83, 86, 93, 373, 433 
435, 462, 1038, 1039 
Drewe v. Colton 639 

Drinkwater v. Deakin 479 

Druliner v. State 530 

Dryden v. Swinburne 40, 178, 560, 761 

847 
Duane v. McDonald 928 

Dubuc v. Voss 711 

Dubuque County v. Bailroad Co. 271 
Ducote v. Gremillion 818 

Duffey's case 513 

Duffy v. Mason 69, 488, 491, 496, 1007 
Duke v. Ashbee 485 

Dullam v. Wilson 719 

Dunglas v. Officers of State 699 

Dunlop v. Fleming 688, 689 

Dunn v. Framingham 264 

Duson v. Thompson 786 

Dwyer v. Hackworth 276 

Winters 545 

Dyson v. Pope 57, 327, 925 



E 

Earle's case 

Earl of March v. Pigott 

Bosslyn v. Ay town 
Butland's case 
Shrewsbury's case 

Easby v. Badenhausen 



162 
494 
696 
699 
240 
795 



Easton v. Scott 369, 570, 967, 1005, 1028 
Eaton v. Harris 951 

Echols v. State - 761, 867 

Eddy v. Wilson 951 

Edmondson v. Barrett 1021 

Edson v. Child 449 

Edwards' case 213, 238, 561, 992 



Edwards v. United States 
Elbin v. Wilson 
Ellingham v. Mount 
Ellis' case 
Ellis v. Commissioners 307, 

Karl 

Bedding 
Ellyson's case 
Embry v. United States 
Emery's case 
Enkle v. Edgar 
Ens worth v. Albin 
Erdman v. Barrett 
Esley v. Starr 
Ethridge v. Hill 
Evans v. Populus 
Everroad v. Flatrock 
E wing's case 
Ewing v. Filley 

Thompson 



F 



Secs. 

235 

638 

810 

410 

407, 911, 931 

255, 268 

193, 765 

802 

1066 

528 

127 

342 

816 

251 

910 

713 

210 

410 

795, 808 

700 



Fanagan v. Kernan 
Fant v. Gibbs 
Farlee v. Bunk 
Farlow v. Hougham 
Farrington v. Turner 
Faulkner v. Boddington 
Fearing's case 
Fell v. State 
Fellows' case 
Felton v. Easthorpe 
Fenn v. Bennett 

Holme 
Fenton v. Hampton 
Field's case 
Field i). Avery 

Field 
Fife case 
Finley v. Bisbee 
Walls 



Fish v. Collins 
Fishback's case 
Fisk v. Chester 
Fisk v. Hazard 
Fitch's case 
Fitch v. McDiarmid 
Fitler v. Shotwell 
Fitzpatrick's case 
Flanders' case 
Flatan v. State 
Flatcher v. Boodle 
Fleming v. Dunlop 
Flintshire case 
Foley v. Speir 
Follett v. Delano 



557 

130, 678 

70 

834 

328 

127 

114, 439 

243 

590 

483 

584, 614 

946 

1057 

109. 335, 473, 510 

603, 771 

682 

556 

37,451,460,499, 759 

362, 363, 371, 445, 505 

512, 513, 527, 588, 593 

602, 626, 1001 

559 

108, 648 

643 

265 

1018 

864, 928 

750 

349 

298, 431 

213, 221, 232, 715 

90 

943 

556 

485 

448, 597, 763, 1002 

1004, 1006, 1038 

Forbes v. Macpherson 461 

Force v. Batavia 384 



TABLE OF CASES . 



XXI 







Seos. 








Secs. 


Ford v. Wright 




840 


Gilmore v. Holt 






387 


Fort Worth v. Davis 




260 


Giroux v. Binet 






797 


Foster's case 




781 


Glascock v. Lyons 






953 


Foster v. Kansas 




855 


Goetchens v. Matthewson 


96 


J, 98, 


458 


Piggott 




473 








460 


Scarff 




385, 498 


Goggin v. Gilmer 




153. 


, 465 


Fouke v. Trumbull 




134 


Gold v. Fite 215. 


, 231, 


690 


,706 


Fowler v. Beebe 


375 : 


, 378, 951 


Golden v. Prince 






28 


Danvers 




267 


Golder v. Bressler 






127 


Franklin v. Kaufman 




381 


Good v. Elliott 






494 


Talmadge 




539 


Goodell 1). Baker 






463 


Freeman's case 407, 409, 


521, 


579, 751 
1001 


Gooding v. Wilson 
Goodwin's case 


511, 


764. 


787 
571 


Freetown case 




440 


Gordon v. Farrar 






460 


French's case 




89, 582 


State 


268, 


956, 


958 


French v. Bacon 




1033 


Gore's case 






158 


Lighty 




773 


Gorham v. Campbell 






498 


Nolan 




556 


Gormly v. Taylor 






702 


Frost v. Metcalf 




517, 590 


Gorsard v. Vaught 






310 


Fry v. Booth 




441, 496 


Goshorn v. Purcell 






762 


Fryer v. Bodenham 




100 


Gosling v. Veley 






556 


Fuller's case 




173, 488 


Gothard v. Clarke 






428 


Fuller v. Dawson 382, 433 


,434 


,448,583 


Go van v. Jackson 


517, 


795, 


830 


588, ' 


752, 


763. 1003 


Governor v. Bell 






750 


Kingsbury 




116 


Jeffreys 
McAffee 






750 

750 


G 






Nelson 
Grafflin's case 






196 
299 


Gager v. Supervisors 




710 


Grant v. Paghan 






487 


Gale v. Mead 




309 


Graves v. Edson 






785 


Gallagher v. Moore 




805 


Gray v. Mount 






258 


Gallatin's case 




140, 539 


Great Western Railway v. 


Rushout 


264 


Gallegos v. Perea 




1026 


Greeley v. Thompson 






375 


Galway cases 




556 


Green v. Burke 


375. 


378, 


951 


Gand v. State 




908 


Miller 






682 


Gardner's case 


96, 


437, 438 


Salas 






761 


Gardner v. Haney 




588 


Greenleaf v. Low 


373, 


375, 


431 


Garfield's case 




520, 521 


Gribbin v. Kirker 






520 


Garland's case 




767 


Grier v. Shackelford 






911 


Garrard v. Gallagher 




1059 


Griffin's case 






166 


Gass v. State 




498, 856 


Griffin v. Reynolds 






750 


Gatchell v. Moran 




538 


Rising 






941 


Gates v. Delaware county 




238 


Wall 59, 510, 759 : 


,760, 


828, 


850 



Gause v. Hodges 339, 443, 633, 825 

Gaydon v. Bancroft 24 

Geebrick v. State 792 

Gelpcke v. City 952 

Genereux v. Cuthbert 489 

Georgia cases 195 

Gerry's case 147 

Gholson's case 194, 1019 

Gibbons v. Shepard 827 

Stewart 617 

Gibbs «. Bartlett 402 

Gibson v. Templeton 810 

Giddings v. Clark 347, 372, 535, 583 
614, 626, 759, 1025, 1028, 1033 
Gilbert v. Sykes 494 

Gilham v. Bank 542 

Gillespie v. Palmer 571,575 

Gilliland's case 565 

Gilliland v. Schuyler 397, 770, 774, 794 



1021 

Grindley v. Barker 682, 814 

Griswold's case 141 

Guyer v. O'Daniell 46 

Gulick v. New 170, 558 

Gunter v. Wilshire 538, 541, 544, 623 

Gurney v. Gordon 1059 

Guyon v. Sage 544 



H 



Haddox v. County 385 

Hadley v. Albany 619, 625, 771 

Commissioners 693 

Hagge v. State 603 

Hagerty v. Arnold 225 

Hahn's case 298, 431, 475 

Haight v. Love 192 

Haile v. Palmer 750 



XX11 



TABLE OF CASES. 





Secs. 


Haines v. School District 


395 


Halbeck v. Mayor 


234 


Hale v. Evans 


194 


Hall v. Holden 


264 


Marshall 


269, 486, 965 


Lyon 


835 


People 


963 


School District 


412 


Walker 


576 


Halliburton v. Brooks 


697 


Ham v. Smith 


485 


Hambleton v. People 


893, 957, 959 


Hamilton case 


399 


Hamilton v. Barton 


39 


People 


956 


Phippsburg 


425 


Hamlin v. Dingman 


705 


Hammock v. Barnes 


576 


Hammond v. Haynes 


792 


Herri ck 


161 


Hamtranck v. Holihan 


710 



Handy v. Hopkins 231, 810, 826, 850 

Hammm's case 420 

Hardenburg v. Bank 498 

Hardesty v. Taft 167, 344, 347, 348, 638 

Harding's case 450 

Harding v. Stokes 482, 492 

Hargreaves v. Hopper 75 

Harlan's case 656, 663 

Harman v. Tappendeu 639 

Harmon v. Park 428 

Harrington v. Du Chatel 698 

Harris' case 322 

Harris v. Javs 375 

Pounds 884, 886, 887 

Bichardson 784 

Whitcomb 363, 449, 756 

Harrison v. Davis 468, 1029 

Greaves 484, 871 

Simons 933 

Hartley's case ' 509 

Hartt v. Harvey 459, 516, 614, 619, 625 

626, 944 

Hartwell's case 322 

Harvard College v. Gore 48 

Harvey's case 173 

Harwich case 328, 441 

Harwood v. Marshall 937 

Haskell v. Closson 776, 779 

Haskett v. "Wooton 494 

Hasty's case 441 

Haswell v. Mayor 1063 

Hathaway 's case 493 

Hathaway v. Goodrich 750 

Hawes v. Miller 486, 528 

Hawkins' case 474 

Hawkins v. Carroll County 260 

Commonwealth 166 

Begem 556 

Beginam 557 

Haws v. Darling 389, 403 

Hayden's case 439 



Secs. 

Hay den v. Noyes 417 

Haynes v. Hillis 630 

State 1068 

Heath's case 309, 526, 581, 586, 617, 625 

629, 808 

Hedley v. Commissioners 716, 850 

Heine v. Levee Commissioners 946 

Hemphill's case 1050 

Henkin v. Guerss 494 

Hennen's case 709, 711 

Henry's case 514, 577 

Henry v. City Council 808 

Henshaw v. Foster 641 

Henslow v. Fawcett 490 

Hetzel v. Commissioners 933 

Hey wood v. Dodson 761, 773 

Hickok v. Shelburne 414 

Highway case 192 

Hill v. Goodwin 525, 781, 931 

Hillman's case 147 

Hillman <o. Flanders 90, 389, 617 

Hills v. Chicago 792 

Hincks v. Jones 150, 560 

Hinde v. Chorlton 84 

Hinkle v. Commonwealth 966 

Hixon v. Price 823 

Hobbs' case 514 

Hobbs v. Bartholmesz 549 

Hoboken v. Gear 716 

Hogan v. Pile 449 

Wardlaw 496 

Hoge's case 299, 318, 424, 976, 1041 

Hoge '0. Beed 986 

Hoke v. Henderson 235 

Holden v. People 705, 894 

Holland v. Davis 520 

Holmes v. People 208 

Wilson 314, 315, 974, 1005 
1033, 1038 

Holt's case 419 

Holton v. Brown 820 

Honev v. Davis 852 

Hood"'?;. Potter 549, 1030 

Hoogland v. Culvert 221 

Hope v. Magistrates 816 

Houghton's case 847 

Howard v. Cooper 327, 381, 382, 1003 

1024, 1026 

McDiarmid 864, 919 

Shields 453, 595, 832 

State 130 

Wood 1062 

Howe's case 514 

Hubbard's case 181 

Huber v. Beilly 98 

Huddleston v. Pearson 205, 861 

Hudmon v. Slaughter 610 

Hudson v. Solomon 776 

Hughes v. Buckingham 207 

Marshall 483 

Hugunin v. Ten Eyck 544 

Hulseman v. Bems 943 



TABLE OF CASES. 



XX111 





Secs. 




Secs. 


Humphrey v. Kingman 


86, 363 


Jones v. Commissioners 


943 


Hunt v. Chilcott 


990, 993 


Gridley 


384 


Larpin 


1021 


Jones 


349 


Richards 


71 


Kolb 


56 


Shelden 468, 471, 473, 988 


Mann 


559 




1003, 1036 


Randall 


494 


Hunter's case 


113, 1050 


Sanford 


406 


Hunter v. Chandler 


625, 1062 


State 390, 


397, 498 


Huntingtower v. Gardiner 


489 


Water bury 


265 


Hurdle v. Waring 


628 


Jorgensen v. Griffin 


39 


Hurley v. Van Wagner 


485 


Josselyn v. Ludlow 


251 


Hussey v. Crickett 


494 


Judd v. Thompson 


277 


Hj^de v. Brush 


364 


Judkins v. Hill 


771 


Malone 


643 


Juker v. Commonwealth 


327 


State 

I 
Ilchester case 


222, 234 


Jump v. Spence 

K 
Kane v. People 


1065 


773 


603 


Ilsley's case 


409, 523 


Kaufman v. Stone 194, 


765, 951 


Ingersoll v. Nay lor 


502, 770 


Kay v. Magistrates 557, 


684, 835 


Ingerson v. Berry 


812 


Keeler's case 


157, 488 


Inhabitants of Belfast v. Morrill 687 


Keenan v. Cook 


355 


Iusurance Co. v. Tisdale 


761 


Perry 


709, 718 


Irwin v. Lowe 


570,585 


Kehn v. State 


1068 


Isbell v. Farris 


199 


Keith v. May hew 


47, 148 






Keller v. Chapman 


498 


J 




Kelly v. Harris 


83 






Story 


375 


Jacks' case 


109 


Kellogg's case 120, 


510, 755 


Jackson v. Miller 


750 


Kendall v. Canton 


128 


Simonton 


223 


Kenfield v. Irwin 


384 


Walker 


485 


Kennard v. Louisiana 


796 


Wayne 976, 1021, 


1033, 1036 


Kentucky cases 


178, 181 




1041 


Kerns v. Swoope 


750 


Young 


309 


Kerr v. Jones 


162 


Jameson v. Isaacs 


544 


Trego 


626 


Jarrolt v. Moberly 


245 


Key's case 


185, 559 


Jayne v. Drorbaugh 


640, 852 


Keys v. Mason 


208 


Jeffreys v. Higgins 


963 


Keyser v. McKesson 


373, 431 


Jeffries v. Ankeny 


641 


Kielley v. Carson 


1057 


Rowe 


172, 558 


Kilbourne v. Thompson 1055, 1056, L057 


Jenkins v. Brecken 533, 551, 841 


Kilgore v. Magee 


128 


Shaw 


45, 47 


Killiam v. Ward 


641 


Waldron 


639 


Kilpatrick v. Smith 


943 


Jennings v. Reynolds 


495 


Kincaid v. Howe 


544 


Jimison v. State 


198 


King v. Beedle 


856 


Johns' case 


666 


Boscawen 


575 


Johnson's case 109, 310 


, 425, 1050 


Boyles 


888 


Johnson v. Cole 


585, 600 


Brame 


884 


, Ellison 


544 


Bridge 


903 


Hocker 


750 


Carpenter 


903 


Rankin 


979 


Clarke 


907 


Rich 


242 


Francis 


903, 909 


Russell 


495 


Hanley 


859 


Johnston v. Wilson 


709 


Hawkins 


556 


Jones' case 


436 


Isherwood 


483 


Jones v. Black 


940 


Jones 


903 


Board of Registrars 


96 


Lane 


886 


Caldwell 


505 


Mayor 


857, 911 


Carnahan 


309 


Mayor of London 


903 


Cavins 


170 


Mayor of Whitchurch 


903 



XXIV 



TABLE OF CASES. 







Secs. 








Secs. 


King v. Morris 




877 


Leak v. Howell 






375 


Mortlock 




877 


Learned's case 






173 


Newling 




886 


Ledbetter v. Hall 






535 


Orde 




886 


Lee i). Rainey 






538, 541 


Park 


47, 52. 


, 599 


Richardson 






467 


Parry 


884, 


, 886 


Leech v. State 






238 


Serle 




907 


Leeman v. Hinton 




230 : 


, 803, 829 


Slythe 




886 


Lehman v. McBride 






592 


Stacey 




890 


Leib's case 






997, 1001 


Stoke, Damerel 




792 


Leigh v. State 


603, 


795. 


, 880, 934 


Symmons 




877 


Leighton's case 






435 


Warlow 




879 


Leman v. Sutherland 






194 


Williams 




907 


LeMoyne v. Farwell 






445 


Winchester 




928 


Leominster case 






556 


Woodman 




900 


Letcher v. Moore 54, 


97, 


383 


, 761, 773 


Kingery v. Berry 


789. 


, 849 








775, 787 


Kirk v. Rhoads 


792. 


, 821 


Levy's case 






22 


Kirkbridge v. County 




270 


Lewis' case 






976, 1041 


Kirkcudbright case 




556 


Lewis i). Commissioners 




272, 275 


Kirkpatrick v. Vickers 




426 


Commonwealth 




917 


Kister v. Cameron 




911 


Watkins 






1059 


Kittredge's case 




596 


Licence cases 






28 



Kittredge v. North Brookfield 244 

Walden 414 

Kline v. Myers 787 

Verree 999, 1000, 1003 

Knappen -». Supervisors 1068, 1069 

Kneass' case 535, 782, 801, 824, 833, 840 

1007 
Knight v. Corporation 375 

Knowles' case 29 

Knowles v. Gaslight Co. 1057 

Luce 375 

Yeates 498, 847 

Knowlton v. Rice 679, 680 

Knox v. Blair 499, 1035 

Koontz v. Coffroth 100, 373. 433, 434 

763, 1031 
Kuykendall v. Harker 510 



Lacoste v. Duffy 
Laimbeer v. Mayor 
Lamb v. Railroad Co. 
Lane v. Gallegos 
Lanesborough case 
Langdon's case 
Lanman's case 
Lanning v. Carpenter 
Lansing v. Lansing 
Lapham's case 
Las Portas v. De La Motta 
Lathrop's case 
Latimer v. Patton 555, 

Laughton v. Putney 
Laval v. Meyers 
Lawhorne's case 
Lawrence v. Knight 
Lawson v. Railway Co. 
Leach V. Cassidy 



1059 
711 
940 
99, 506, 597 
630 
479 
666, 667 
331 
494, 495 
654, 665 
26 
523 
749, 976, 1021 
1041 
265 
494 
225 
941 
395 
375 



Light v. State 384, 925 

Lilley's case 773 

Lilley v. Corne 490 

Limerick case 441 

Lincoln v. Chapin 580 
Hapgood 46, 47, 53, 641 

Lindsay v. Scott 461, 535 

Lindsey v. Attorney-General 856 

Auditor 912 

Linegar v. Rittenhouse 809 

Lippincott v. Pana 273 

Livingston v. Albany 420 

Lock's appeal 243 

Lockhart v. Troy 375, 377 

Locust Ward Election 498 

Lombard v. Oliver 643 

Long v. Long 640 

State 585 

Loomis v. Township 258 

Lothrop's case 338 

Louisiana v. Taylor 244 

Louisville v. Kean 912 

Savings Bank 245 

Lovering v. Dawson 816, 1059 

Low v. Rice 375 

Lowe's case 335 

Lowe v. Commonwealth 130, 708 

Wheeler 341, 531 

Lowry v. White ,761 

Lowther's case 869 

Loyal v. Myers 495 

Newton 464, 1021 

Lucas v. Town 588 
Luce v. Mayhew 581, 609, 611, 615 

Ludlam v. Ludlam 26 

Lyman v. Eiske 42, 46 

Martin 917, 938 

Lynch v. Chalmers 599, 1037 

State 685 

Lynde's case 410 



TABLE OF CASES. 



XXV 







Secs. 






Secs. 


Lyon v. Rice 




402 


McFarland v. Dench 




322 


Smith 


477, 


1033 


Culpepper 




373, 1021 








Purviance 


373 


, 431, 435 


M 






976, 1030, 1041 








McGibbons v. Walden 




549 


Macartney v. Corry 




843 


McGregor v. Balch 




156 


Mace's case 




406 


McGrorty v. Hooper 




1003 


Machell v. Nevinson 




419 


McGuire v. State 




955, 956 


Mackey's case 




921 


McHenry v. Yeaman 




473 


Mackey v. O'Connor 




1045 


Mcllwee's case 




350 


State 




966 


Mcintosh v. Livingston 




445 


Mackin v. State 


284 


, 629 


McKay v. Campbell 




350, 642 


Macomber y. Fisher 




764 


McKee v. Young 102 


178 


371, 559 


Macoy v. Curtis 




229 


McKenzie's case 




299, 473 


Maddox v. Graham 




912 


McKenzie v. Braxton 538 


539 


541, 544 


State 




49 


583, 614, 769, 


772, 


974, 1001 


Magee v. Supervisors 


915 


, 928 


McKenzie v. Kitchen 


110, 


474, 586 


Magistrates v. Lindsay 




684 


McKinney v. O'Connor 




498 


Magrath v. Muskerry 




1015 


McKinnon v. People 




541 


Magruder v. Swann 


798 


, 811 


McLaren v. Milne Home 




430, 761 


Malcom v. Parry 




483 


McMahan v. McGeough 




783 


Malone case 


310, 399 


, 509 


McManus v. Fairbanks 




784 


Mangan v. Brooklyn 




1069 


McMilan v. Boyles 




258 


Manly v. Raleigh 




242 


McVeany v. Mayor 




1061 


Mann's case 




109 


McWhirter i). Brainard 




268 



Mann v. Cassidy 499, 595, 596, 825, 826 

827, 833, 1007 

Marbury v. Madison 374, 699, 700, 701 

Margate Pier v. Hannam 375 

Markle v. Wright 943 

Marsh's case 238 

Marshall's case 1052 

Marshall v. Kerns 498, 506 

Marshall County v. Cook 384 

Martin v. Anderson 750, 754 

Hunter's Lessees 1015 

Mason's case 1050 

Matlett v. Uncle Sam Co. 375 

Matthews v. Supervisors 1065 

Westborough 407 

Maude v. Lowley 840 

Mawby's case 514 

Maxwell v. Cannon 137, 177, 559 

Vincent 781 

Mayfield v. Moore 1062 

Mayors. Inman 261 

Tucker 375 

Weems 309 

Mays v. Johnson 750 

McAllister v. Haden 494 

Hoffman 494 

McCafferty v. Guyer 98 

McCall v. Byram M'f g Co. 375 

McCarthy v. Froelke 138 

Marsh 38, 761 

McCluskey v. Cromwell 792 

McCraw v. Harralson 371, 426, 431, 617 

McCulloch's case 934 

McCune v. Weller 285, 385 

McDaniell's case 47, 56, 513 

McDaniel v. King 45 

McDonough's case 451 



Meacham v. Dow 

Meade v. Dunn 

Medford case 

Mehringer v. State 

Melvin's case 

Members of Congress, case of 

Mendon case 

Mercer's case 

Mercer County v. Hackett 

Meredith's case 

Meredith v. Christy 

Merriam v. Batchelder 

Messervy's case 

Middleton v. Simpson 

Milborn Port case 

Milholland v. Bryant 

Milk v. Christie 

Millar v. Gibson-Craig 

Miller's case 

Miller v. English 

Reinhart 

Rucker 

Supervisors 

Thompson 



Miller's Lessee v. Holt 
Milligan's case 
Milliken v. Fuller 
Mills oo. McCabe 
Milnes v. Bale 
Minor ®. Happersett 

Kidder 
Minot's case 
Minot v. West Roxbury 
Mitchell's case 
Mitchell v. Mitchell 
Moffatt v. Montgomery 



485, 698 
928 
755 
162 

327, 442 
160 

415, 521 

213, 299 
952 
208 
366 
538 
117 
152 
773 
531 
539 
816 

173, 5:,9 

498, 888 
41 

64.0, 643 

222, 238 
47, 333, 334, 424 
585 
750 
565 
369, 431, 1037 
30 
492 
956 

818, 840 
120 

264, 416 

1050 

750 

827 



XXVI 



TABLE OF CASES. 







Secs. 


Secs. 


Mohan v. Jackson 




169 


Nichols b. Mendgett 485 


Monroe v. Cummings 




781 


Ragsdale 826 


Jackson 




66 


Nicholson's case 1050 


Monteith v. McGavin 




352 


Nolley v. Breck 792 


Moody's case 


452, 506 


, 521 


Nooe i). Bradley 214 


Moonlight v. Bond 




488 


Norris v. Handley 446. 467, 583, 612 


Moore v. Beattie 




412 


614, 749, 763, 1021, 1034 


Hoisington 




949 


Northcote v. Pulsford 537 


Jones 




603 


Northern Bank v. Porter 281 


Kessler 


58, 


640 


North Victoria election 514 


Moran v. Bennaud 




641 


North Whitehall v. South Whitehall 339 


Morey v. McCrauie 




471 


Northwood v. Barrington 387 


Morford v. Unger 




242 


Norwood v. Blodgett 665 


Morgan v. Bealie 




750 


Kenfield 774, 828 


Dudley 




29 


Nottingham case 467 


Gloucester City 




385 


Nye's case 372 


Miami County 




952 




Quackenbush 




620 


O 


Richards 




494 




Vance 


131, 


374 


Oakes v. Hill 750 


Morrell's case 




173 


O'Brien v. Knivan 375 


Morris v. State 




961 


O'Connor v. Lock 779 


Underwood 




902 


O'Ferrall v. Colby 608, 919 


Vanlani ngham 


503. 


, 769 


Ogden v. County of Daviess 253 


Morrison v. Springer 


73, 74 


Oglesby v. Sigman 534, 612, 922 


Morse v. D wight 




277 


O'Gorman v. Bichter 790, 825 


Lonergan 




783 


O'Hara v. Kitchen 1023, 1038 


Morton v. Daily 


61, 99. 


, 336 


Powell 919 


Scully 




138 


Oldknow v. Wainwright 556, 571, 575 


Moser v. Long 




199 


Olmstead v. Dennis 225 


Mott v. Connolly 


953, 


1062 


Omichund v. Barker 750, 754 


Mottashed v. Bead 




485 


O'Neil's case 1059 


Moulton v. Beid 


301, 626. 


943 


Opinion of the Judges 62, 73, 80, 83, 86 


Mount v. Waite 




494 


92, 156, 188, 559 


Mowry's case 




399 


Opinion of the Justices 45, 56, 69, 89 


Mumford's case 




162 


90, 100, 120, 337, 338, 439 


Murphy v. Bank 




893 


463, 532, 538, 541, 611, 778 


Ramsey 


177, 346. 


, 642 


Oppenheim v. Railway Co. 207 


Murray v. Thornley 




84 


Oram v. Cole 349 


Myers v. Chalmers 




919 


Ordwav v. Howe 44, 47, 145, 146 


Moffat 


88, 


461 


Woodbury 90, 599 
Orr v. Valence 689 


N 






Osburn t>. Staley 748 
Osgood v. Jones 813, 816 


Nantucket case 




439 


Otero v. Gallegos 34, 373, 435, 772. 999 


Napier v. Mayhew 




530 


1029 


Nason v. Dillingham 




375 


Otterbourg's case 178 


Nefzger v. Bailway Co. 




341 


Overington's case 34 


Nevill v. Payne 




903 


Owens v. O'Brien 221 


Newcomb v. Holmes 


356, 


540 




Newell v. People 




792 


P 


Purdy 




486 




New Jersey cases 36, 37, 


87, 426, 


768 


Pace v. People 238, 602 




773, 


775 


Pacheco v. Beck 578 


Newland v. Graham 


446, 


775 


Pana v. Bowles 279 


Newman v. Doe 




750 


Page v. Allen 301, 340 


Newsham v. Ryan 




471 


Hardin 152, 213, 240 


Newsom v. Cocke 




717 


Page County i\ American Emigrant 


Newton v. Mobberly 




84 


Co. " 397 


Newell 549, 


552, 795, 


, 818 


Palmer v. Howe 766, 768, 1001 


Niblack v. Walls 517, 518, < 


614, 616, 


1034 


Parker's case 452 


Nicholls' case 




356 


Parker v. Baker 375 



TABLE OF CASES. 



XXV11 





Secs. 


Parker v. Commonwealth 


792 


Kitt 


375 


Parmater v. State 


208, 399 


Parrott's case 


520, 523 


Parsons' case 


482, 598, 980 


Passenger cases 


28 


Patrick v. Smith 


538 


Patterson case 


180 


Patterson v. Barlow 


301 


Belford 


315 


Society 


242 



Coats 592, 593, 596, 761 

773 

Paul's case 33 

Peabody v. School Committee 845 

Pearce v. Hawkins 378 

State 965 

Pearson v. Wilson 941 

Pease's case 577 

Pease v. Rowell 1005 

Peck v. Weddell 249, 268, 269 

Peebles v. Commissioners 603 

Tomlinson 750 

Pegler v. Gurney 1005 

Pekin v. Proctor 378 

Pender v. Regem 202 

Pendleton County v. Amy 952 

Pennoyer v. Neff 1057 

Pennsylvania case 339 

People v. Addison 210 

Akin 919 

Albertson 124 

Allen 309, 625 

Ames 129, 552 

Ammons 375 

Bartlett 888 

Bates 446, 498 

Blanding 703 

Bledsoe 126, 127, 213 

Brenham 384, 387, 1061 

Burbauk 208 

Burden 776, 788 

Burhside 717 

Campbell 694 

Canaday 57, 458 

Canvassers 598 

Carr 932 

Carrigue 709 

Cazneau 229 

Church 201 

Cicott 535, 538, 766 

Clarke 953 

Clingan 221, 769 

Clute 559 

Coghill 814 

Collins 375, 849 

Commissioners 880 

Common Council 167 

Comstock 303 

Contant 207 

Cook 368, 373, 431, 498, 538 

539, 541, 544, 611, 625, 953 



Secs. 
People v. Corporation 928 

County Commissioners 603 
Cover 915 

Covert 375 

Cowles 384, 387 

Crissey 228, 625, 687, 1069 
De Mill 879 

Doesburg 909 

Dubois 130 

Dutcher 248, 272 

Ferguson 538, 542, 611, 903 
Fire Commissioners 711, 718 
Fitzsimmons 688 

Freund 786 

Gamer 623 

Gordon 36 

Green 156, 158, 205, 207 

Hanifan 240 

Harrington 127,602 

Harris 956, 961 

Hartwell 384 

Harvey 868 

Hastings 130 

Head 605 

Higgins 538 

Hill 708, 718 

Hilliard 919 

Hills 879 

Holden 47, 56, 71, 493, 536, 553 
786, 869 
Holly 309 

Hopson 375, 378 

Jewett 716, 771, 825, 855 

Jones 625 

Kane 375 

Keeling 890 

Kelsey 130 

Kenney 552 

Kent 598 

Kilbourn 687 

Killduff 603, 625, 934, 937 
Koppelkorn 342 

Livingston 303, 597 

Loomis 907 

Love 772 

Mann 240 

Martin 328, 384, 385, 386 

Matteson 129, 538, 541, 856 
Matthewson 285 

Maynard 331, 792 

Mayor 711, 715 

May worm 888, 899 

Mclver 228 

McManus 371, 528, 538, 541 

548 
Miles 888, 899 

Miller 626 

Mizner 202 

Morgan 690 

Morliter 559 

Mulvaney 808 

Murray 498, 688 



XXV111 



TABLE OF CASES. 









Secs. 






Secs. 


e v. New York 






857 


People v. Whiteside 




387, 682 


Nordheim 




582, 


603, 614 


Whitlock 




199, 718 


North 






625 


Wiant 


575 


623, 627 


Ohio Grove 






357 


Wilson 213 


347 


348, 361 


Parker 






189 


Pepis' case 




709 


Pease 96, 


535, 


611, 


767, 771 


Perkins' case 




332 








773 


Perkins v. Carraway 


348, 


546, 552 


Peck 






387, 625 


Stevens 




96, 767 


Perley 






905 


Perley's case 




187 


Perry 






303 


Perry v. Montague 




599, 1031 


Phillips 






907 


Whittaker 




348, 579 


Porter 


238, 


384, 


386, 387 


Petersfield case 




773 


Potter 




< 


221, 1061 


Pettibone v. Derringer 




1921 


Pratt 






906 


Pettit v. Rousseau 




1062 


Purdy 






792 


Peyton v. Brent 




625 


Railroad Co. 


795 


,894 


896, 903 


Phelps' case 




107, 197 


Eegents 






932 


Phelps v. Schroeder 




592, 603 


Reynolds 






242 


Phillips v. Ives 




494 


Richardson 






855, 893 


Phillpots v. Phillpots 




84 


Riley 






71 


Piatt v. People 


462 


498, 757 


Rives 






913 


Pickering v. James 




638 


Rosborough 




130, 


384, 490 


Startin 




1007 


Runkel 






387 


Pidge v. Taylor 




750 


Ruyle 






595 


Piggott's' case 




47 


Ryder 


575, 


815, 


818, 826 


Pike v. Magoun 




639 


Sackett 






909 


Pittsburg v. Danforth 




407, 419 


Salomon 






242 


Piatt v. Goode 


258, 


593, 633 


Saxton 






536 


Plymouth v. Painter 




375, 378 


Scale 






442 


Polk's case 




1050 


Scannell 




233, 


856, 935 


Pollard v. Brewer 




1063 


Schermerho: 


rn 




22, 498 


Pond v. Negus 




309 


Schiellein 






306 


Pontefract case 




467 


Schroeder 






686 


Pope v. St. Leger 




494 



Seaman 538, 541, 552, 597, 611 
771, 858, 908 
Sloan 321 

Smith 611 

Smyth 1061, 1062, 1066 

Stevens 375, 856, 928, 934, 951 
Stout 709, 721, 934 

Supervisors 199, 253, 357, 582 
920, 910, 937 
Sweeting 910 

Sweetman 31 

Thomas 691 

Thompson 719 

Tieman 224, 1061 

Tilton 227 

Tisdale 538, 542, 890 

Town 273 

Trustees 309 

Vail 625, 759, 903 

Van Cleve 896 

Van Gaskin 130 

Van Slyck 589, 603, 903 

Waite 886, 890 

Walker 682, 695, 829 

Warfield 571, 575, 622, 623 

934 
Weller 384, 387 

Whitcomb 860 

White 375, 378, 927, 937, 951 



Porterfield v. McCoy 83, 434, 517. 518 

756, 1024, 1039 

Potter v. Canaan 266 

Bobbins 447, 646 

Powell's case 180 

Powell v. Bradley 75 

Common Council 394 

Guest 53 

Powerbank v. Morris 709 

Powers v. Hurst 207 

Reed 759 

Pradat v. Ramsay 585 

Prairie v. Lloyd 398, 586 

Pratt's case 488, 560 

Pratt v. Luther 580 

Prentiss v. Executors 25, 44 
Prescott v. Crossman 150, 489, 784 
Preston v. Culbertson 53, 443, 1005 

Harris 468 

Price v. Baker 679 

Page 864 

Priest v. Cummings 38 

Prince v. Clark 536 

Pritchett v. People 375 

Prouty v. Steever 677 

Prowse v. Foot 224, 225 

Puffer's case 410 

Putnam v. Langley 778 



TABLE OF CASES. 



XXIX 



Q 




Secs. 


Regina v. Derby 


Secs. 
928 


Queen v. Blagden 




896 


Diplock 


860, 895, 897 


Green 




876 


Dixon 


155 


Hungerford 




863 


Dover 


354 


Tyrrell 




907 


D'Oyley 


330 


Quincy v. Cooke 




270 


Dudley 


1058 


Quinn v. State 




58, 958 


Earnshaw 


1060 


Quirk v. McDonald 




40 


Edye 
Exeter 


887 
354 


R 






Francis 
Franklin 


882 
862 


Radnorshire case 




556 


Glover 


427 


Railroad v. Bank 




375 


Greene 


876, 1058, 1059 


Derry 




254 


Griffiths 


691 


Railroad]Co. v. Commissioners 


272. 514 


Grimshaw 


685 


County 




246 


Guardians 


856 


Davidson 




575, 623 


Hampton 


856 


Davidson County 506 


Hartley 


1058 


Drew 




1021 


Hedges 


886 


Galgiani 




847 


Hiomes 


556 


Geiger 




329 


Hodson 


892 


McDonald 




244, 282 


Hoyte 


938 


Railway Co. v. Brooks 




411 


Justices 


863 


Chatham 




249 


Lander 


403 


Commissioners 


762,792 


Ledgard 


758 


Lowe 




62 


Lichfield 


• 350 


Mallory 




274 


Locke 


683 


Town 


273, 


389, 395 


Lockhouse 


877 


Unity 




274 


Lord Mayor 


910, 933 


Ramsay v. Callaway 




619 


May 


1060 


Smith ' 140, 1 


Mayor 


557, 579, 857 


Ramsey v. Carhart 




871 


Mcintosh 


882 


Smith 




559 


McMahon 


876 


Randolph v. Jennings 




319 


Miller 


184 


Rankin v. Pitkin 




599 


Monmouth 


354 


Ransom v. Abbott 




659 


Moodie 


1067 


Dundas 




978 


Mousley 


859 


Rantoul's case 




197 


O'Reilley 


906 


Raynor v. Haynes 




1021 


Owens 


158 


Read's case 




899 


Pancras 


556 


Reed v. Acton 




415 


Parham 


156 


Cosden 537, 


552, 


624, 1041 


Preece 


332, 882, 883 


Kneass 




767 


Quaile 


874, 875, 885 


Lamb 




492 


Recorder 


935 


Reeder v. Whitfield 




971 


Ricketts 


858 


Regina v. Alderson 




212, 875 


Rowley 


565 


Austin 




860 


Ryan 


892 


Avery 




540 


Ryde 


929 


Backhouse 




856 


Seale 


892 


Beardsall 




843, 961 


Sidney 


1060 


Bent 




493 


Slatter 


885 


Booth 




856 


Smart 


898 


Boscawen* 




456 


Smith 


929, 937 


Bradford 




932 


Tait 


455 


Bradley 538 


,541. 


, 542, 906 


Taylor 


863 


Bushopp 




699 


Tewkesbury 


577 


Caesar 




874 


Thirlwine 


879, 884 


Clark 




492 


Thompson 


493 


Coaks 




556 


Thwaites 


566 


Darley 


874, 


, 894, 897 


Tugwell 


358, 366, 540 


Deighton 




455, 546 


Vestrymen 


692 


Deputies 




1002 


Ward 


892 



XXX 



TABLE OF CASES. 



Reid v. Julian 371, 1024 

Rendlesham v. Haward 104 

Renner v. Bennett 64 

Report of Committee 69, 89, 90, 337, 627 

Revel's case 140 

Rex 1). Amery 907 

Archbishop 931 

Autridge 899 

Badcock 856, 880 

Barzey 884 

Bedford Level 375, 380, 880, 930 



Bell 

Bellringer 

Bennett 

Bingham 

Bishop 

Blank 

Blatchford 

Blissel 

Bond 

Bowen 

Bower 

Bracken 

Brame 

Bridge 

Bridgewater 

Bristol Dock Co. 

Brooks 

Brown 

Buller 

Burder 

Burton 

Chitty 

Clarke 

Clear 

Coe 

Colchester 

Coleridge 

Commissary 

Courtenay 

Cudlipp 

Danbury 

Daviess 

Dawes 

Deane 

DeMierre 

Dicken 

Downes 

Duke of Richmond 

Edgan 

Ellis 

Foster 

Foxcroft 

Foxdale 

Francis 

Gordon 

Grampond 

Greet 

Grimes 

Grout 

Hawkins 

Heaven 



903 
683 

903, 909 
856 
931 
856 
894 
556 
157 
966 

235, 683 
876 
886 

556, 557 
377 
931 
901 
874 

509, 934 
235 
682 
182 

874, 894 
931 
556 

856, 928 
931 
426 
908 
876 
859 
873 
890 
184 
138 
900 

24, 1058 
904 
898 
231 
879 
691 
387 
855, 872, 910 
376 
931 
692 

683. 896 

138 

73, 556 

152 



Rex v. Hewer 
Higgins 
Huball 
Hughes 
Ingram 
Jefferson 
Johns 
Johnson 
Jones 
Jotham 

Justices 863, 

Lane 
Latham 
Lawrence 
Leigh 
Leyland 
Lisle 
Lone 
Loxdale 
Lyme Regis 
Machiter 
Maiden 
Marsden 
Marshall 

Mayor 235, 509, 
893, 922, 
Mayor of Helleston 
McKay 
McMullen 
Mein 
Miller 
Monday 
Morris 
Mortlock 
Neal 
Parkyns 

Parry 183, 

Pateman 
Payne 
Peacock 
Phillips 

Pike and Prideau 
Pitt 

Ponsonby 
Provost 
Ramsden 
Rees 
Rolfe 
Sargent 
Sergeant 
Shepherd 
Slythe 
Smith 
Stacey 
Stafford 
Stoke Damerel 
Stokes 
Swyer 
Tate 

Theodoric 
Tomlyn 
Trevenen 



Secs. 
935 
903 
895 
863, 897 
934 
835, 863 
900 
684 
235 
931 

931, 933, 935 
885 
863 
901 
896, 899 
234 
375 
235 
309 
714 
42 
903 
855 
858 

525, 857, 862 

928, 931, 932 
900 
- 856, 1060 
883 
863 
682 

556, 683, 686 
683 
876 
896 
877 

556, 557, 890 
157 
872, 876 
901 
903 
900 
479 
880 
42 
859 
930 
906 
152 
890 
859 
877, 884 
212, 874 
900 
931 
928 
901 
172 
221 
683 
858 
876, 892 



TABLE OF CASES. 



XXXI 



Rex?;. Trinity House 

Varlo 

Warlow 

Wardroper 

Waterworks 

Westwood 

White 

Whittaker 
' Whitwell 

Wildman 

Williams 

Willyams 

Withers 

Wynn 

Yeates 
Reynolds 9. McKinney 



Secs. 
893 
683 
892 
890 
931 
683 
880 
931 
880 
934 
509 
683 
456 

1058 
906 
495 



State 558, 786,861,889,896 

899, 904 

Ribhans v. Crickett 485 

Rice v. Commonwealth 374, 375 

Foster 792 

Welch 783 

Richards' case 87, 462, 616, 625, 892 

1001, 1046 

Richardson's appeal 322 

Richardson's case 441, 579 

Richardson 9. Rainey 472, 476, 600 

Rickman 9. Carstairs 792 

Riddle v. Bedford 378 

Ridley v. Sherbrook 102 

Rigdon v. Passmore 489 

Ritchie v. Putnam 38 

Robertson 9. Groves 810 

Robinson's case 150, 350, 561 

Robinson v. Harland 376 

Supervisors 930 

Rodgers' case 110, 333 

Rodlebaugh v. Sanks 387 

Rogers' case 814 

Rogers v. Johns 847 

Roller v. Truesdale 564 

Rollins 9. Henry 39 

Root 9. Adams 549 

Ross v. Williamson 233, 934 

Rounds v. Smart 618 

Rowland v. Mayor 127 

Rowley v. Reginam 579 
Royal Burgh 9. Cunningham 202, 1069 

Royse 9. Birley 84 

Rucker v. Supervisors 1069 

Rump v. Commonwealth 29 

Runk 9. Ten Eyck 750 

Russell v. State 502, 756 

Rutherford v. Morgan 749, 976, 1021 

1041 
S 

Sackett 9. State 685 

Salston v. Norton 490 

Sanders 9. Getchell 70, 640 

Sargent 9. Webster 682 

Saterlee 9. San Francisco 375, 377 



Saulsbury 9. Middleton 

Saunders 9. Gatling 

Grand Rapids 
Haynes 

Savage v. Walshe 

Sawyer's case 

Scarff 9. Foster 

Schlencker 9. Risley 

School District 9. Can* 
Stone 

Scott 9. Ring 

Scranton case 

Scribner v. Keyes 

Seal 9. Reginam 

Searcy 9. Grow 

Seaton 9. Swem 

Sebastian's case 

Second Canterbury case 

Second Southwark case 



Secs. 

208 

871 

231 

559 

309 

946 

225, 385, 835 

376, 378 

158 

281 

230 

514 

149, 784 

352 

138, 163, 841 

495 

1050 

556 

556 

Segar's case 107, 110, 296, 424, 474 

Selleck 9. Common Council 808 

South Norwalk 800 

Sergeant's case 165 

Sessinghaus v. Frost 517, 563, 564 

Sevier's case 666, 668 

Sewall's case 158 

Shaftesbury case 773 

Shankriker 9. Reading 1021 

Shattuck's case 754, 979 

Shaw 9. Abbott 50, 100, 536 

Buckminster 549, 562, 576 

Sheafe 9. Tillman 103, 371, 373, 431 

467, 623 
Shedd's case 442 

Sheehan's case 951 

Shelburne 9. Rochester 538 

Shepard 9. Turner 267 

Shepherd 9. Gibbons 513 

Shepley's case 147 

Sheppard's case 849 

Sherburne's case 424 

Sherburne 9. Hern 915 

Sheridan 9. Pinchback 635, 675, 1034 

1036 

Sheriff's case 881 

Sheriff of Middlesex 1057 

Sherman 9. Torrey 409 

Shiel 9. Thayer 290 

Shields' case 140, 559 

Shirley 9. Sankey 494 

Sibley's case 114 

Siebold's case 286, 287, 690 

Simmons 1 case 1053 

Simon 9. Common Council 846 

Durham 614 

Simonton's case 866 

Simpson 9. Commissioners 263 

Dennison 264 

Dix 544 

Wallace 989 

Wilkinson 100 

Yeend 483 



XXX11 



TABLE OF CASES. 



Sinks v. Reese 


62, 63, 95. 


Secs. 
, 759 


Skerret's case 


502 . 


, 824 


Slade's case 




560 


Sleeper v. Bice 
Sloan v. Bawls 


446, 499 ; 


591 

585 


Small v. Tillman 




467 


Smith's case 


32, 


, 108 


Smith v. Brown 




559 


Darley 




692 


De Bouchin 




378 


Hall 




100 


Holloway 
James 




349 
351 


McCarthy 
McMasters 




242 

495 


Moodey 
Moore 




80 
165 


New York 




808 


Shelley 
Smollett v. Buntein 


444, 


582 
472 


Smyth v. McMasters 
Sneed v. Bullock 




494 
943 


Somerville v. Somerville 




48 


Southard v. Bradford 




395 


Southwark case 


467 


,556 


Sowle v. Sowle 




538 


Spaulding v. Mead 


621, 976, 


1021 



Spelsbury v. Micklethwaite 496 

Spence's case 224 

Spence v. Judge 759 

Spencer's case 520, 1017 

Spencer v. Harrison 483, 491 

Morey 453, 1036 

Spragins v. Houghton 23, 459, 792 

Sprague v. Norway 498 

Spratt e. Spratt 38, 761 

Stanley v. Manley 531 

Stanton v. Lane 159 

Stark's case . 181 

Stark v. Insurance Co. 761 

States. Adams 98, 530, 576, 624, 861, 862 

Albin 911 

Allen 151 

Anderson 559 

Ashley 855 

Auditor 928 

Baker 343 

Beackmo 37 

Beecher 888, 896, 899 

Beeman 393, 399, 411 

Bender 571 

Benedict 225 

Berg 227 

Berry 214 

Bieler 888 

Bissell 71 

Black 215 

Board of Education 276 

Board of Inspectors 536 

Boal 887 

Bool 559 

Boyett 956 



State v. Brady 210 

Brassfield 345 

Brennan 393, 951 

Bridge Co. 890 

' Brown 128, 157, 310, 857, 869 

890 

Burchfield 805 

Burden 762 

Burnett • 910 

Buskirk 864 

Buttz 156 

Cake 750 
Canvassers 431, 585, 588, 609, 615 
617, 636, 926, 931, 938, 941 

Carroll 375 

Cavers 547, 583, 815 

Chamber of Commerce 716 

Chambers 565 

Champlin 879 

Churchill 625 

Claypool 715 

Clerk 948 

Cobb 164, 199, 905 

Cohoon 957 

Collier 486 

Commissioners 402, 933 

Common Council 716 

Conklin 907 

Cooke 243 

County Judge 603, 916, 923 

Court 907 

Covington 128, 129, 131 

Daniels 639 

Davidson 308 

Davis 218 

De Gress 160 

Deliessiline 857 

Deshler 22 

Dinsmore 258, 550 

Doherty 721 

Dombaugh 301, 321 

Donnewirth 759 

Douglass 955, 965 

Dunn 676, 857 

Durant 302 

Duryea 276 

Dusman 928 

Dustin 174 

Elwood 242, 772 

Ely 233, 552, 934 

Falconer 233 

Ferguson 235 

Fisher 890 

Fitzgerald 808, 955 

Fletcher 966 

Foote 865 

Foster 540 

Franks 492 

Frizzell 1065 

Frost 47 

Funck 862, 908 

Gallagher 861, 862 



TABLE OF CASES. 



XXX111 





Secs. 




Secs. 


State v. Gammon 


321 


State v. McDiarmid 


864, 888 


Gardner 


857, 922, 924 


McDonald 


956, 963 


Garesche 


911 


McGarry 


716 


Gastinel 


559 


McKinnon 


454, 624, 810 


Gates 


538, 545 


McMullen 


576 


Geiger 


391 


Mead 


706, 890 


Gibbs 


625 


Meadows 


200 


Giles 


171, 559 


Merry 


865 


Gleason 


865, 869, 888, 899 


Messmore 130, 


824, 836, 865, 904 


Glenn 


706 


Metzger 


528 


Goetz 


384 


Minnick 


48, 765, 958 


Goldthwait 


772 


Mitchell 


599 


Governor 


603, 626, 927 


Moffat 


871 


Green 


686, 687, 784 


Moore 


958, 965 


Greenleaf 


420 


Morton 


966 


Griffey 


64, 546, 548 


Murray 


138 


Haight 


717 


Nerland 


622 


Hallett 


52 


Noyes 


242, 243, 792 


Hardie 


855 


Olin 


773 


Harker 


492 


O'Neill 


792 


Harmon 


812 


Orris 


383 


Harris 


309, 454, 874, 894 


Owens 


805 


Hart 


956 


Parker 


792 


Harvey 


911 


Paul 


168 


Hauss 


238 


Peacock 


603 


Hilmantel 


342, 535 


Penny 


38, 40 


Hinson 


208 


Phillips 


533 


Hitchcock 


200 


Pierce 


536, 537, 902 


Hoeflinger 


40, 888 


Pierrepont 


603, 771 


Howe 


204 


Piper 


357 


Hoyt 


157, 700 


Porter 


956 


Hudson 


837 


Price 


966 


Hunton 


905 


Primrose 


27 


Hutt 


169 


Prince 


910 


Insurance Co. 


865 


Pritchard 


708, 714 


Jackson 


492 


Railway Co. 


855, 865. 904 


Jarrett 


199, 846 


Randall 


589, 692 


Jenkins 


225 


Randies 


965 


Johnson 223, 


558, 626, 756, 793 


Ring 


559, 700 




907 


Robb 


461 


Jones 


216, 384 


Robinson 


225, 323 


Judge 


46, 47, 516, 914 


Roe 


855 


Kalb 


1068 


Schnierle 


890 


Kirk 


170 


Scott 


242 


Kuehn 


716 


Seay 


212, 225, 887 


Kupferle 


855, 888 


Shay 


558, 760, 861 


Labaw 


259 


Sheldon 


934 


Lawrence 


855, 883 


Shelley 


956 


Leay 


424 


Sherwood 


928 


Lehre 


877 


Sillen 


595 


Lewis 


793, 879 


Simonds 


243 


Lillen 


432 


Smith 


138, 309, 559 


Lingo 


855 


Spears 


227 


Livingston 


88 


Stanley 


702 


Long 


887 


Stauffer 


321 


Lupton 


831 


Stearns 


811 


Macomber 


955, 956 


Stewart 


811, 855, 864, 883 


Marlow 


812,860 


Stone 


865 


Marston 


636, 930 


Stumpf 


41. 342 


Mason 


809 


Supervisors 


399 


Mayor 201 


, 259, 571, 575, 623 


Swearingen 


559 


McCIintock 


208 


Taylor 


157, 860, 907, 908 



XXXIV 



TABLE OF CASES. 







Secs. 






Secs. 


State v. Thompson 




157, 602 


Supervisors v. Hall 




980 


Tiernay 




554, 559 


O'Malley 




622 


Tolan 




890, 891 


People 




359, 463 


Townsley 




603 


Schenck 




952 


Trigg 




618 


Swain v. McRae 




921 


Trumpff 




153 


Swepston v. Barton 520. 


, Duo 


, 632, 824 


Tuttle 




58 


Swinburne v. Smith 


631 


, 637, 847 


Tweed 




965 


Switzler v. Anderson 153 


,178 : 


, 364, 468 


Vail 




559 


Dyer 




511, 611 


Van Winkle 




420 


Sykes v. Spencer 




652 


Vershire 




369 


Symmers v. Begem 




863, 877 


Wadkins 




860 


Sypher v. St. Martin 




469, 1042 


Walker 




622 








Williams 697, 


866, 


868, 957 


T 






Wilson 




127 








Wollem 




523 


Taft v. Adams 




130 


Woodford 




753, 800 


Cole 




567 


Woodruff 




83 


Talbot v. Dent 




575, 623 


Wright 


221, 


603, 861 


Taliaferro v. Hungerford 


85, • 


148, 1028 


Young 




390 


Talkington^. Turner 




538, 838 


State Bank v. State 




855 


Tally 1). Grider 




254 


Stearns' case 




158 


Tanner v. Albion 




243 


Steele v. Bosworth 




100 


Tappan v. Gray 




946 


Calhoun 




534 


Taylor's case 




506 


Martin 


794, 


799, 825 


Taylor v. Carney 




785 


Steere's case 




147 


Hebden 




204 


Steinwehr v. State 




957 


Mayor 




556 


Stephen •». Clements 




750 


Beading 62, 66, 


461, 


517, 518 


Stephens' case 




29 


Ross County 




246 


Stephens v. People 




384, 861 


Skrine 




375, 378 


Stern v. People 




693 


Taylor 259, 373, 


375, 


431, 432 


Stevens v. Lawrence 




801, 834 






498 


Tillett 




490 


Wallace 




848 


Stewart v. Agnew 




1015 


Temple v. Mead 




535 


Allison 




750 


Tennessee cases 




1037 


Foster 




23 


Tepper v. Nichols 




351 


Norwalk 




256 


Terhune v. Mayor 




1061 


Stimpson v. Breed 




779, 1001* 


Territory v. Lockwood 




869 


Stimson v. Boardman 




493, 502 


Pyle 




130, 846 


Stinson v. Sweeney 




431, 834 


Tharpe v. Hardison 




400 


St. Joseph v. Sogers 




575, 623 


Thatcher v. People 


257, 


276, 412 


St. Louis v. Russel 




242 


Thayer's case 322, 


403, 


571, 759 


Stockdale v. Hansard 




1057 


Thayer v. Greenback 




499, 596 


Stoll brand v. Aiken 




1029 


The Acorn 




761 


Stone v. Charleston 




242 


The Francis 




44 


Stilwell 




1021 


The Indian Chief 




44 


Stoner v. Ellis 




750, 754 


Thomas' case 


180, 


181, 559 


Stoughton v. State 




966 


Thomas v. Arnell 


1003. 1038 


Stovall v. Cabell 446, 504, 1001, 1029 


Thompson's case 


435, 


436, 437 


Strahl's case 




806, 951 


Thompson v. Cook 




39 


Stratton v. Oulton 




1061 


Ewing 56, 95 


,373. 


375. 380 


Striker v. Kelley 




387 


499, 502, 


505, 


509, 587 


Strobach v. Herbert 




549 


596, 695. 


754, 


760, 766 


Strong's case 


611 


, 911, 931 


768, 770. 


782, 


824, 827 


Stubbs v. State 




765, 1059 


839, 


916, 


931, 947 


Sturgeon v. Korte 




67 


Pearce 




84 


Sudbury v. Heard 




452 


Railroad Co. 




946 


Summers v. McKim 




1021 


Whitman 




1057 


Supervisors' case 




690 


Thorndike v. Bostou 




45 


Supervisors i\ Davis 30, 


357. 


, 486, 496 


Thorne v. Cramer 




242 




499 


, 515, 949 


Tilden's case 




442 


Galbraith 




244, 245 


Tillson v. Ford 


220, 


390, 764 



TABLE OF CASES. 



XXXV 



Tipperary Election 


1046 


Tipton v. State 


965 


To bey v. King 


526, 584 


Todd v. Jayne 60, 333, 617, 


1004, 1024 




1029 


Tod v. Tod 


808 


Tomlin v. Tyler 


768, 773 


Tomport v. Lithgow 


375 


Town of Coloma v. Eaves 


280 


Tozer v. Child 


639 


Tracy's case 


666, 667 


Trammell v. Thurmond 


750 


Trigg v. Preston 


464, 473 


State 


713 


Trumbull's case 


136 


Trumbull v. Campbell 


1064 


Truscott v. Bevan 


481, 483 


Trust Co. v. Hebron 


419 


Trustees v. Garvey 


377 


Gibbs 


510 


Tucker v. Aiken 


387, 486 


Booker 


178 


Commonwealth 


498, 502 


Kegem 


155 


Turner's case 


762 


Turner v. Baylies 544 


, 552, 1021 


Drake 


564 


Melony 


1064 


Step 


750 


Turney v. Marshall 


134 


U 




United States v. Addison 


864 


Anthony 


956 


Buford 


750 


Cruikshank 


965 


Eisher 


792 


Gale 


962 


Guthrie 


928 


Hendrie 


955 


Johnson 


955 



162, 



Knight's 
trators 
Le Baron 



Adminis- 

1015 
221, 374, 701 



Lockwood 869,884,893 



Upton's case 



O'Neill 

Price 

Quinn 

Reyburn 

Smith 

Souders 

Stewart 

Thorpe 

Villato 

Wright 

V 



955 

1021 

954 

376 

1021 

752,792,964 

374 

52 

28 

235, 238 

341 



Vaccari v. Maxwell 
Vallandigham v. Campbell 

Vance v. Gayler 



375 

773, 1003 

1024 

824 



Van Hostrup v. City 

Van Ness' case 

Van Orsdall v. Hazard 

Van Rensselaer v. Van Allen 



Van Vliet v. Phillips 
Van Wyck v. Greene 
Varnum's case 
Venable v. Curd 
Vischer v. Yates 
Vogle v. Grace 
Vogt v. Danley 

W 



Secs. 

952 

976, 1041 

235, 241 

515, 976 

1041 

39 

22, 461, 499, 999 

999 

378 

495 

39 

256 



Wade's case 

Waggoner v. Shibley 

Waite's case 

Wait v. Ingalls 

Waldo v. Portland 
Wallace 

Walker's case 

Walkhouse «. Derwent 

Wallace v. Simpson 

Waller v. Harris 

Wallis v. Birks 

Walther v. Rabolt 

Wammach v. Holloway 

Warfield v. Latrobe 

Warner v. Myers 

Warren's case 

Warren v. McDonald 

Washburne v. Greenleaf 
Bipley 
Voorhees 

Waygood v. James 

Weaver v. Given 

Webb's case 

Webb v. Smith 

Webster v. Byrnes 
French 
Gilmore 
Harris 

Weeks v. Ellis 

Wells v. Taylor 



Westbrook v. Deering 

Boseborough 
Westfield case 
Westminster case 
West Riding case 
Wexford Election 
Wheat v. Ragsdale 
Wheeler v. Patterson 
Wheelock's case 
Whepley v. McCune 
White's case 
White v. Clements 
Whiting's case 
Whitman v. Maloney 
Whitney's case 
Whitney v. Carigue 
Stow 



120 

844 

173 

146 

266 

169 

409 

494 

471, 559 

792 

84 

37, 138 

93, 208 

845 

928 

328, 409, 440 

759 

447 

163 

499, 1029 

845 

59, 499, 596, 827, 828 

833 

322, 523 

581 

353, 459, 517 

309 

536, 762 

750 

373, 375, 431 

268, 373, 377, 486 



253 
194 

777 
467 

215, 237 

466 

820, 827, 886, 1039 

639 

450, 521 

373, 431, 432, 445 

113, 976, 1041 

752, 906 
996 
559 
755 
156 
420 



XXXVI 



TABLE OF CASES. 



Secs. 

Whitney v. Townsend 39 

Whittaker^. County 274 

Cummings 37, 361, 366, 563 

567 

Whyte v. Harris 467, 470 

Wigfall's case 1050 

Wigginton v. Pacheco 71, 361, 533 

Wight v. People 894 

Wilbur's case 536 

Wilcox v. People 713, 718 

Ray 750 

Smith 375, 376 

Wildman v. Anderson 339, 537 

Wiley v. Board of Education 263 

Willard v. Killing worth 417 

Willcock's case 682 

Willey's case 181 

Williams' case 181, 197, 488, 666 

Williams v. Boughaer 194, 711 

Bowers 

Cammack 

Chadbourne 

Connelly 

School District 

Stein 

Tenby 

Whiting 

Williamson v. Berry 

Lane 

Sickles 

Williford v. State 

Willis v. Owen 

Willoughby v. Smith 

Wilmarth's case 

Wilson v. Davis 

Lucas 

Peterson 

School District 



State 
Wimberly's case 
Wing v. Cloud 
Winter v. Thistlewood 



544 

242 

1021 

324^ 

309 

535 

996 

46, 52, 56 

1057 

847 

974, 1003 

592, 941 

158 

544 

463 

291 

823 

375, 454, 507 

436 

955 

946 

473, 477 

809 



Winthrop's case 
Withnell v. Gartham 
Wolcott's case 
Wolfe v. Washburn 
Womack v. Wilson 
Wood's case 
Wood v. Bartling 

Fitzgerald 

Jewell 

Wood 
Woodbury v. Commissioners 
Woodward io. Sarsons 504, 528, 

Worchester case 
Worley v. Smith 
Worthington's case 
Wright v. Adams 

Fawcett 

Fisher 

Fuller 373, 431, 509, 

Pinkerton 
Wrisley v. Waterbury 
Wroth v. Johnson 
Wyandotte v. DreDnan 
Wyley v. Wilson 
Wyman v. Lemon 



Secs. 
197 
682 
437 
750 
750 
232 

392, 559 

96, 767 

411 

494 

934 

533, 535 
536 
773 
221 
764 
219 
810 

544, 590 

541, 545 
997 
817 
413 
494 
1068 
416 

530. 532 



Yates v. Leach 816 

Yeates v. Martin 371, 442, 509, 531, 589 

Yell's case 162 

Yonkey v. State 52, 151, 152 

Youghall election 483 

Yulee v. Mallory 559, 654, 657 



Z 

Zeigler v. Bice 
Zimmerman v. Cowan 
Zorger v. Greenburgh 



559 
834 
170 



A TREATISE 



ON THE 



LAW OF ELECTIONS 



CHAPTER I. 



THE EIGHT OF SUFFRAGE ; POWER TO GRANT, WITHHOLD, AND REG- 
ULATE THE RIGHT, AND TO PRESCRIBE QUALIFICATIONS AND 
DISQUALIFICATIONS FOR ITS EXERCISE. 



1. Nature, origin, exercise, and reg- 

ulation of the right . . 1-3 

2. Objects of its exercise ; election 

of officers, and determination 
of questions submitted to the 
electors ..... 4 

3. Power to confer, or withhold the 

right, and to prescribe qualifi- 
cations and disqualifications 
for its exercise . . . 5-8 

4. The ballot and the viva voce vote 9 

5. Effect of article 1, section 2, of 

the constitution of the United 
States . . . . .10 

6. Effect of article 14 of the amend- 

ments . . . . .11 



Secs. Secs. 

7. Effect of article 15 of the amend- 
ments ... 12 

8. Effect of article 1, section 3, of 
the constitution . . .13 

9. Effect of article 4, section 3, as 
to the territories . . .14 

10. Effect of article 1, section 8, as 
to the District of Columbia . 15 

11. Restriction of the right of suf- 
frage to males not in conflict 
with article 14 of the amend- 
ments . . . . .16 

12. Military and naval sites and res- 
ervations, in the states 17, 18 

13. Military and naval sites and res- 
ervations, in the territories 19-21 



§ 1. The right of suffrage, in its unrestricted sense, is the right 
to vote in the election of all officers chosen by the people, and in 
the determination of all questions submitted to the people. It is 
not impaired by the lawful substitution of executive appointments, 
or other modes of designation, for popular elections, in the cases 
of particular officers, or classes of officers. 

§ 2. In the United States, as in England, the accepted doctrine 
of the courts and people is that the power to determine ultimately 
who shall, and who shall not, exercise the right of suffrage, in 
every state, resides in those members of the state who are compe- 



2 

tent, at the time, to make, or alter, its fundamental law. The right 
of suffrage is not regarded as one of the inalienable rights enu- 
merated in the declaration of American independence, and in the 
bills of rights of the' states. 1 While those rights are held to be 
natural rights, subject to forfeiture for crime, and to regulation 
by law, in some cases, as those of minors, idiots, lunatics, and 
criminals, the right of suffrage is held to be a political right, orig- 
inally conferred, as well as regulated, by law, — a right which may 
be conferred upon, or withheld from, those who do not exercise 
it, by those who do exercise it, and may be withdrawn from such 
,of those who exercise it as the others shall be able, in the mode 
prescribed by constitutional or valid statutory provisions, to de- 
prive of the right. Accordingly the right of suffrage is, in fact, 
enjoyed in the United States, as in England, only by a minority of 
the members of the state. It is, in practice, withheld from women, 
and, in theory, if not in practice, from minors, idiots, lunatics, and 
criminals, which five classes, together, constitute a majority of the 
citizens of the United States. 

§ 3. The fundamental principles of American suffrage have been 
stated by Mr. Webster as follows : The first is that the right of 
suffrage shall be guarded, protected, and secured against force and 
against fraud. The second is that its exercise shall be prescribed 
by previous law ; its qualifications shall be prescribed by previous 
law ; the manner of its exercise, under whose supervision (always 
sworn officers of the law) is to be prescribed. And then again the 
results are to be certified to the central power by some certain rule, 
by some known public officers, in some clear and definite form, to 
the end that two things may be done : first that every man en- 
titled to vote may vote ; second that his vote may be sent forward 
and counted, and so he may exercise his part of sovereignty in 
common with his fellow-citizens. 2 

§ 4. The right of suffrage is exercised, in the United States, for 
two distinct purposes, first the election of officers, and second the 
determination of questions duly submitted to the vote of the peo- 
ple. The officers chosen are such legislative, executive, and judi- 
cial officers as the law authorizes the people to elect. The ques- 

'1 Story Const. 580; 1 Black. Comm. Kidley «. Sherbrook, 5 Cold. 569; Aii- 
171 ; Huber v. Keilly, 53 Perm. St. 115 ; derson v. Baker, 23 Md. 531. 

-Lowe v. Wheeler, 2 Ells. 61. 



tions determined, by popular vote, are those which are submitted 
to the electors by constitutions, ordinances, or statutes, such as 
the question of the ratification, or rejection, of a constitution, or 
constitutional amendment, or of a proposed statute, the location, 
or removal, of a county seat, or the assumption of municipal obli- 
gations for the construction of turnpikes, railways, canals, bridges, 
court-houses, poor-houses, and infirmaries, and for other public 
purposes. 

§ 5. The elective franchise is not an unrestrained license. In 
a government of law, the law must regulate the manner in which 
it is to be exercised. The time, occasion, and mode of voting are 
to be prescribed by the legislature, in subordination to the pro- 
visions of the constitution. Accordingly laws are enacted, provid- 
ing for the appointment of officers of election, designating the 
hours of the day during which the elections are to be held, in- 
dicating the proof necessary to establish the right to vote, pre- 
scribing the qualifications of officers of election, providing for the 
assessment of taxes required to be paid by the voter, prescrib- 
ing the record to be kept at the polls, and the mode in which 
the result is to be ascertained and the return prepared, and pre- 
served. The elector's privilege is not a mere constitutional ab- 
straction ; but is to be exercised in subordination to law, and 
on proof of title on the part of the person claiming its exercise. 
The right, however well founded, may be lost for want of such 
evidence of title as the law demands ; just as the possession and 
enjoyment of property, secured by the declaration of rights to the 
citizen, may be taken away, or withheld, from him for the want of 
the necessary evidence of ownership. It is to enable the honest 
voter to secure to himself his constitutional privilege, to protect 
him against its loss by fraud, mistake, or negligence, on the part 
of others, that laws have been enacted, providing for an examina- 
tion into the result of an election, at the instance of qualified voters. 
This legislation is, therefore, not to be regarded as hostile to the 
exercise of a right conferred upon the citizen by the supreme law 
of the land, but, on the contrary, as in aid of and a protection to it. 1 
It is essential to the validity of an election, by the people, that it 
be authorized by some statute in force at the time. 2 

'Batturs v. Megary, 1 Brewst. 162. a People v. Matthewson, 47 Cal. 442. 



§ 6. By the constitution of the United States the power to pre- 
scribe the qualifications of electors of senators and representa- 
tives, of the United States is vested in the several states. It is 
provided that the electors of representatives, in each state, shall 
have the qualifications requisite for electors of the most numerous 
branch of the state legislature ; x that the senators shall be chosen 
by the legislatures of the several states; 2 and that each state shall 
appoint, in such manner as the legislature may direct, a number 
of electors equal to the whole number of senators and represent- 
atives to which the state may be entitled in the congress. 3 The 
qualifications of electors of senators and representatives, and of 
presidential electors, are accordingly fixed by the constitutions, 
or laws, of the several states. But this power of the state is 
limited by such inhibitions of the constitution as may be applica- 
ble to the subject, including those which forbid any discrimination 
against the citizens of any state, 4 or the adoption of qualifications 
inconsistent with the guaranty of the republican form of govern- 
ment, 5 or the denial or abridgment of the right of citizens of the 
United States to vote on account of race, color, or previous con- 
dition of servitude. 6 Inasmuch as the elective franchise is not a 
natural right, 7 the power of the state to fix the qualifications of 
voters is restricted only by the constitution of the United States. 

§ 7. The constitutional qualifications of electors cannot be altered 
by statute, unless the constitution itself authorize such alteration, 
because an expression, in the constitution, of the conditions upon 
which a right may be exercised, or a penalty imposed, excludes, 
by implication, any change in such conditions by statutory enact- 
ment. 8 But a statute requiring electors, before they vote, to an- 
swer certain questions calculated to draw out proof respecting 
their qualifications, does not prescribe any new qualifications, and 
is not unconstitutional. 9 The power to confer, or withhold, the 
right to vote, at federal or state elections, within the several states, 
resides in the states themselves, subject to the provisions of the 
federal constitution. The power to confer, or withhold, the right 



'Const. U. S., art. 1, s. 2. 

2 Id. art. 1, s. 3. 

3 Id. art. 2, s. 1. 
, 4 Id. art. 4, s. 2. 
fi Id. art. 4, s. 4. 
"Id. art. 15. 



7 Ante § 2. 

8 Kison v. Fair, 24 Ark. 161 ; Cooley's 
Const. Lim. 64; Thomas v. Owens, 4 
Md. 189. 

9 State v. Williams, 5 Wis. 308 ; State 
v. Leon, 9 Wis. 279. 



to vote in the territories, and in the District of Columbia, resides 
in congress, subject to the provisions of the federal constitution. 
In an unsuccessful contest with the house of lords and the courts, 
commencing in 1704, the house of commons claimed the right not 
only to judge of the returns of its members, but also to prescribe 
the qualifications of electors of members of their house. x A res- 
olution of the house of commons has no effect to exclude, from 
the enjoyment of the elective franchise, any person, or class, in 
whom the right is already vested by statute. 2 Where a charter 
expressly gave the power of election to the mayor and commonalty 
together with the aldermen, a subsequent by-law T , which gave it 
to the mayor and aldermen only, was held illegal and void. 3 But 
where the charter authorized the corporation to elect a master from 
their own number, a by-law narrowing the body of electors was held 
valid. 4 

§ 8. It has been held, by the supreme court of Iowa, that the 
constitution of that state does not confer, but only restricts, the 
powers of the legislature ; and that it is competent for the legisla- 
ture to prescribe the qualifications of electors, and the time, place, 
and manner of exercising the elective franchise, w T hen not pro- 
hibited by the constitution. 5 A statute which authorizes the elec- 
tion of four members of the police board at the same election, 
but permits each voter to vote for only two members, is in conflict 
with a constitutional declaration that every elector " shall be en- 
titled to vote at all elections." 6 The main object of an election 
is to enable the citizen to exercise the prerogative of voting, and 
the legislature cannot, by incorporating unconstitutional provisions 
into an election law, make the votes of electors null and void. 7 

§ 9. In the United States the vote has hitherto generally taken 
the form of the secret ballot, which is regarded as essential to the 
free and independent exercise of the right of suffrage. In a case 
decided by the court of king's bench, in 1825, the English judges 
expressed their opinion of the secret ballot as follows : Bayley, J. : 
" The objection to the mode of voting by ballot is that it presents 
an insurmountable difficulty to a scrutiny, because no person can 

1 May Pari. Pr. 57. 5 Morrison v. Springer, 15 Iowa, 304. 

2 Buhner v. Norris, 30 L. J. C. P. 25. 6 State v. Constantine, 42 Ohio St. 437. 
3 Hoblyn v. Begem, 2 Bro. P. C. 329. T Andrews v. Saucier, 13 La. Ann. 301. 
4 Bex v. Atwood, 4 B. & Ad. 481. 



6 

tell for whom a particular individual voted. Another objection 
to election by ballot is that the taking of votes, in this secret and 
private manner, has a tendency to encourage perjury." Holroyd, 
J.: "I have great doubt also whether election by ballot be a legal 
mode of election or not. Some advantage may accrue from it, such 
as avoiding ill-will amongst the parishioners, and leaving the voters 
uninfluenced ; but I think it is the duty of the returning officer to 
see that the person returned is duly elected, and that he is bound 
to use reasonable means to attain that end. Now, if he takes 
down the names of the voters and the persons for whom they vote, 
and it afterwards appears that any person has been admitted to 
vote who has no right to vote, his name may, on a scrutiny, be 
struck off. In the case of an election by ballot, the returning 
officer puts it out of his power to ascertain whether the party who 
voted had a right to vote or not." Littledale, J. : " As to the other 
question, it is clear that where parties have the right of voting, the 
restriction of voting by ballot cannot be imposed. The writing of 
the name of the candidate on a card is not strictly an election by 
ballot. The great objection to such a mode of election is that there 
can be no effectual scrutiny, because, if it be afterwards discovered 
that a given individual has voted, who had no right to vote, it is 
impossible to say on which side he voted." 1 Under a village char- 
ter providing that, "at every annual meeting, said corporation shall, 
by ballot, if called for, elect for the ensuing year," upon the de- 
mand of a single voter, the vote must be taken by ballot, and a 
viva voce vote, taken in disregard of such a demand, is unlawful. 2 
§ 10. The right of suffrage is not conferred by any provision of 
the constitution of the United States. 3 The power to prescribe 
the qualifications of voters, whether at federal or at state elections, 
not being " delegated to the United States, by the constitution, nor 
prohibited, by it, to the states," is " reserved to the states respec- 
tively, or to the people." The possession, by the states, of the 
power to prescribe the qualifications of voters for representatives, 
in congress, is expressly recognized in the second section of the 
first article of the constitution, which also, by obvious implication, 
recognizes the right of the states to prescribe the qualifications 

1 Faulkuer v. Elger, 4 B. & C. 449. United States v. Keese, 92 U. S. 214 ; 

2 State v. Harris, 52 Verm. 216. United States v. Cruikshank, 92 U. S. 

3 Minor v. Happersett, 21 Wall. 178; 542. 



of voters in all other cases. The following is the language of the 
section : " The house of representatives shall be composed of 
members chosen, every second year, by the people of the several 
states, and the electors, in each state, shall have the qualifications 
requisite for electors of the most numerous branch of the state 
legislature." While this clause does not, in express terms, confer 
upon, or secure to, the people, or any of them, the right of suf- 
frage, for any purpose, it does, by necessary implication, recog- 
nize the right of the people to vote for representatives in congress, 
and for members of the most numerous branch of the state legis- 
lature. Standing alone, and literally interpreted, the first part of 
this clause would ■ seem to recognize this right as existing in all 
the people. But the latter part of the clause restricts the exercise 
of the right to those who have the qualifications requisite for elec- 
tors of the most numerous branch of the state legislature, which 
qualifications are to be prescribed, of course, in the constitutions 
and laws of the respective states. 

§11. The fourteenth and fifteenth amendments of the constitu- 
tion have placed certain restrictions upon the power of the states 
to prescribe the qualifications of voters. The fourteenth amend- 
ment contains the following provisions: "Section 1. All persons 
born or naturalized in the United States, and subject to the juris- 
diction thereof, are citizens of the United States, and of the state 
wherein they reside. No state shall make, or enforce, any law 
which shall abridge the privileges, or immunities, of citizens of 
the United States ; nor shall any state deprive any person of life, 
liberty, or property, without due process of law ; nor deny to any 
person, within its jurisdiction, the equal protection of the laws. 
Section 2. Representatives shall be apportioned among the several 
states, according to their respective numbers, counting the whole 
number of persons in each state, excluding Indians not taxed. 
But when the right to vote, at any election, for the choice of elec- 
tors for president and vice-president of the United States, repre- 
sentatives in congress, the executive and judicial officers of a state, 
or the members of the legislature thereof, is denied to any of the 
male inhabitants of such state, being twenty-one years of age, and 
citizens of the United States, or, in any way, abridged, except for 
participation in rebellion, or other crime, the basis of represen- 
tation therein shall be reduced in the proportion which the num- 



8 

ber of such male citizens shall bear to the whole number of male 
citizens twenty-one years of age, in such state." 

This latter clause is not an express grant of the right of suffrage 
to any part of the people, for any purpose ; nor is it a recognition 
of the absolute right of the people, or of any part of the people, 
to vote. But it is a provision that unless all rights of suffrage 
which may be enjoyed, in connection with the offices named, by 
any of the inhabitants of a state, shall be enjoyed by all the 
male inhabitants of such state, being twenty-one years of age, 
and not guilty of rebellion or other crime, the basis of represen- 
tation of such state in congress shall be reduced as therein indi- 
cated. 

The provisions that " no state shall make, or enforce, any law 
which shall abridge the privileges, or immunities, of citizens of 
the United States," " nor deny to any person, within its jurisdic- 
tion, the equal protection of the laws," which are contained in the 
first section of this amendment, would seem to exclude all quali- 
fications and disqualifications for voters based on race, or color. 
While the second section does not, in terms, withhold from the 
states the power to make race, or color, the ground of disqualifi- 
cation for the exercise of the elective franchise, it does impose 
upon the states a penalty for the enforcement of such disqualifi- 
cation, in the form of a reduction of the basis of their representa- 
tion in congress. 

§ 12. But the 15th amendment expressly prohibits the denial, 
or abridgment, of the right of suffrage, on account of race, color, 
or previous condition of servitude, as follows : " The right of 
citizens of the United States to vote shall not be denied, or 
abridged, by the United States, or by any state, on account of 
race, color, or previous condition of servitude. The congress 
shall have power to enforce this article, by appropriate legisla- 
tion." This prohibition, which is operative upon the federal gov- 
ernment, as well as upon the states, is manifestly effective to 
nullify all federal laws and all state laws and constitutions in con- 
flict therewith. The fifteenth amendment does not confer the 
right of suffrage ; but it exempts citizens of the United States 
from discrimination, in the exercise of the elective franchise, on 
account of race, color, or previous condition of servitude, and 
empowers congress to enforce such exemption, by appropriate 



9 

legislation. 1 The adoption of this amendment annulled all pro- 
visions of state constitutions restricting the right of suffrage to 
the white race. 2 

The power of congress to legislate upon the subject of voting 
at state elections, which rests upon the fifteenth amendment of the 
constitution, can be exercised, by the infliction of punishment, 
only when the wrongful refusal to receive the vote of a qualified 
elector, at such elections, is because of his race, color, or previous 
condition of servitude. The third and fourth sections of the act 
of May 31, 1870, 3 not being restricted, in their operation, to cases 
of unlawful discrimination, on account of race, color, or previous 
condition of servitude, are not within the scope of the fifteenth 
amendment. Inasmuch as they are framed in general language 
broad enough to cover wrongful acts, without as well as within the 
constitutional jurisdiction, and cannot be limited by judicial con- 
struction, so as to be operative only on that which congress may 
rightfully prohibit and punish, they do not make provision, by 
" appropriate legislation," for the punishment of an inspector of 
a municipal election, for refusing to receive and count the vote of 
a citizen of the United States of African descent. 4 

§ 13. It is provided, in the third section of the first article of 
the constitution, that, " the senate of the United States shall be 
composed of two senators from each state, chosen by the legisla- 
ture thereof for six years." It is also provided, in the fourth 
section of the fourth article, as follows : " The United States shall 
guaranty to every state, in this union, a republican form of gov- 

1 United States v. Reese, 92 U. S. 214. the exercise of the free right of suffrage, 

2 Neal v. Delaware, 103 U. S. 370. in any state. 

3 16 Stat. 140. " Sec. 2004. All citizens of the United 

4 United States v. Reese, 92 U. S. 214. States, who are otherwise qualified, by 

In the exercise of the power conferred law, to vote at any election by the people, 

by the fifteenth article of the amend- in any state, territory, district, county, 

ments of the constitution, congress en- city, parish, township, school district, 

acted the following provisions of the re- municipality, or other territorial subdi- 

vised statutes : vision, shall be entitled to vote at all 

" Sec. 2003. No officer of the army, or such elections, without distinction of 

navy, of the United States shall prescribe, race, color, or previous condition of ser- 

or fix, or attempt to prescribe, or fix, by vitude ; any constitution, law, custom, 

proclamation, order, or otherwise, the usage, or regulation, of any state, or ter- 

qualifications of voters, in any state, or, ritory, or by, or under, its authority, to 

in any manner, interfere with the free- the contrary notwithstanding." 

dom of any election, in any state, or with 



10 

ernment, and shall protect each of them against invasion, and, on 
application of the legislature, or of the executive (when the legis- 
lature cannot be convened), against domestic violence." These 
sections recognize the legislature as a part of the state govern- 
ment ; and, if either branch of the legislature is to be elected by 
the people, as contemplated in the second section of the first arti- 
cle, they also incidentally recognize the right of the people to elect 
the members thereof. Furthermore, if a legislature elected, in 
either branch, by the people, is essential to a republican form of 
government, the section last cited incidentally binds the United 
States to guaranty the right of suffrage to that extent. 

§ 14. It is provided, in the third section of the fourth article of the 
constitution, that, " the congress shall have power to dispose of, 
and make all needful rules and regulations respecting the territory , 
or other property, belonging to the United States." Under this 
provision, congress has absolute power to establish, or abolish, the 
right of suffrage in the territories. But, so long as the right of 
suffrage is permitted to exist in the territories, it will be subject to 
the restrictions of the fifteenth article of the amendments of the 
constitution, excluding all distinctions based upon race, color, or 
previous condition of servitude. Congress has declared that no 
distinctions in the right of suffrage in the territories shall be based 
upon race, color, or previous condition of servitude. 1 

§ 15. The eighth section of the first article of the constitution 
confers upon congress the power " to exercise exclusive legislation, 
in all cases whatsoever, over such district (not exceeding ten miles 
square) as may, by cession of particular states, and the acceptance 
of congress, become the seat of government of the United States." 
The existence of the right of suffrage, in the District of Columbia, 
is therefore wholly dependent on the will of congress, subject to 
the provision of the fifteenth article of the amendments of the 
constitution, excluding distinctions based upon race, color, or pre- 
vious condition of servitude. 

§ 16. A restriction of the elective franchise, by a state consti- 
tution, to males, is not in conflict with the fourteenth article of the 
amendments of the constitution of the United States, in which it 
is declared that " no state shall make, or enforce, any law which 
shall abridge the privileges, or immunities, of citizens of the United 

1 Rev. Stat. s. 2004. 



11 

States." That amendment protects only those rights which be- 
long to persons as citizens of the United States. The right to 
vote belongs to persons as citizens of the state. 1 

§ 17. The jurisdiction and right of eminent domain, which per- 
tain to the general government, cover every part of every state 
and territory. They embraced the original states, and the terri- 
tories north-west, and south of the Ohio river, as soon as the con- 
stitution was "adopted. They applied to the territories acquired 
from France, Spain, Mexico, and Russia, as soon as they were 
acquired. Within the states this right of eminent domain per- 
taining to the general government, is, like its jurisdiction, para- 
mount, but not exclusive. The states have also their right of 
eminent domain, as well as their own proper jurisdiction, within 
their own limits, subordinate, however, in case of conflict, to that 
of the federal government. The concurrent jurisdiction and right 
of eminent domain, which pertain to the federal government, in 
the states, are incapable of alienation, except by virtue of consti- 
tutional provisions. The depositaries of these powers of the gov- 
ernment, for the time being, are incapable of transferring them, so 
as to impair their character, or restrict or hamper their exercise 
by subsequent depositaries of those powers. But, with the ex- 
clusive jurisdiction, which is exercised by congress, in the forts, 
magazines, arsenals, and navy yards, under the eighth section of the 
first article of the constitution, the case is different. This ex- 
clusive jurisdiction of the United States, over military and naval 
sites, in the states, has no existence until such sites are purchased 
by the United States, with the consent of the state legislatures. 
Until they are so purchased the states exercise their own proper 
jurisdiction over them^ subject to the federal jurisdiction of the 
United States. This exclusive jurisdiction of the federal govern- 
ment, once acquired, may, at any time, be terminated by the alien- 
ation of the military or naval sites. 

§ 18. The circumstance that the federal government possesses 
jurisdiction over a state, concurrent with that of the state govern- 
ment, does not affect the right of the people to vote at state elec- 
tions. But the possession of exclusive jurisdiction, by the United 
States, over any part of a state, leaves the inhabitants thereof no 
right to vote, at state elections, either there, or elsewhere, in the 

1 United States v. Anthony, 11 Blatchf . 200. 



12 

state, except such as is conferred by state authority. The right 
of the inhabitants of military, or naval, sites, or reservations, in 
the states, to vote, at state elections, outside of such reservations, 
depends on the state laws and constitutions. Of course no state 
election can be lawfully held within such site, or reservation. Nor 
will inhabitants thereof be entitled to vote elsewhere, under state 
constitutions restricting the right of suffrage to inhabitants of the 
states. But it is competent for the states, by appropriate con- 
stitutional, or statutory, provisions, to permit inhabitants of mili- 
tary, or naval, sites, or reservations, within their limits, to vote at 
state elections, outside of such reservations. 

§ 19. The right of the federal government to exercise exclusive 
jurisdiction over military, or naval, sites, or reservations, in the 
territories, rests on the third section of the fourth article of the 
constitution, in which it is provided, that, "the congress shall have 
power to dispose of, and make all needful rules and regulations 
respecting, the territory, and other property, of the United States." 
The power, which congress holds over military, or naval, sites, or 
reservations, in a territory, is therefore identical in its origin and 
character, with that which it holds over the residue of the territory. 
If congress can confer upon a territorial government certain con- 
current jurisdiction, over one part of a territory, it can confer the 
same jurisdiction, over the whole. If congress sees fit to ordain, 
as it did in the organic law for the territory of Dakota, that all the 
territory, except Indian reservations, shall be included within the 
jurisdiction of the territorial government, its action is as valid for 
one part of the territory, outside of the Indian reservations, as 
for another ; it is equally valid for those portions which are, and 
for those which are not, included in military reservations. 

§ 20. The retention, by congress, of exclusive jurisdiction over 
a part of a territory, as a military reservation, does Mot necessarily 
exclude the right of the inhabitants to vote at territorial elections. 
Congress may confer upon, or withhold, or withdraw, from, a ter- 
ritorial government partial, or complete, control, subject to its own 
paramount authority, over one part, as well as over another part, 
of the territory ; over a military, or naval, site, or reservation, or 
an Indian reservation, as well as over districts not reserved. It 
follows that the right of inhabitants of military, naval, or Indian, 
reservations, in the territories, to vote at territorial elections, 



13 

depends wholly on the will of congress, expressed in the act es- 
tablishing the reservation, or otherwise. 

The rule, which withholds the right to vote within a state, from 
persons who reside within forts, or other territory, ceded, by the 
state, to the federal government, does not apply to military reser- 
vations, designated by the president, within territories belonging 
to the United States. There is no conflict of sovereignty between 
the United States and the territory ; the latter holds all its juris- 
diction in subordination to the controlling power of congress ; and 
the military reservations are not permanently severed from the 
body of the public lands, but are simply set apart and withheld 
from private ownership by an executive order to the commissioner 
of the land office, and may be, and often are, restored to the com- 
mon stock of the public domain, when the occasion for their occu- 
pancy has ceased, at the pleasure of congress. The residents 
upon such reservations, therefore, although remaining there by 
the mere sufferance of the United States authorities, do not, so 
far as the right to vote is concerned, cease to be residents of the 
territory within which such military reservations are situated. 1 

§ 21. The arsenal grounds, at Springfield in the state of Massa- 
chusetts, constitute a part of the territory of the United States, 
over which congress holds the exclusive power of legislation. 
Under the conditions annexed to the purchase of this territory, 
civil and criminal process, in cases arising elsewhere, may be 
served within its limits, by the officers of the commonwealth. But 
no offences committed within this territory are committed against 
the laws of the commonwealth, nor can such offences be punished 
by the courts of the commonwealth, without the authority of con- 
gress. Inasmuch as the laws of Massachusetts have no force 
within this territory, its inhabitants can exercise no civil or politi- 
cal privileges, as electors or otherwise, under those laws in the town 
of Springfield. 2 

1 Burleigh v. Armstrong, Smith, 89. 2 Commonwealth v. Clary, 8 Mass. 72. 



CHAPTER II. 



QUALIFICATIONS OF VOTERS ; CITIZENSHIP. 



Secs. 
Citizenship not always a qualifi- 
cation for the exercise of the 
right of suffrage . . 22-24 

Acquisition of citizenship ; 
(1) By birth, 

(a) In the United States . 25 
(5) Of American parentage, 
in foreign countries . 26, 27 



Secs. 



(2) By naturalization, 

(a) Of the individual voter ; 

(1) Power of congress : . 28 

(2) Tribunal: . 29-31 

(3) Proceedings ; rules : 32-34 

(b) Of parents of voter . 35 
Proof of citizenship ; before 

boards of registration ; at the 
polls ; in contested cases 36-41 



§ 22. The qualifications of voters, in the United States, have 
included citizenship, residence, age, freedom, race, sex, property, 
and payment of taxes. The disqualifications have extended to 
idiots and lunatics, criminals, deaf mutes, deserters, Indians, 
inhabitants of annexed territory, paupers, polygamists, duellists, 
rebels, persons guilty of bribery, or refusing to take prescribed 
test oaths, and to persons not householders. Those statutory pro- 
visions, which fix the qualifications or disqualifications of voters, 
are in general mandatory. 1 Citizenship is not always a qualifica- 
tion for the' exercise of the right of suffrage. Under the consti- 
tution and laws of Illinois, persons of foreign birth, who have 
declared their intention to become citizens of the United States, 
but have not been naturalized, are not qualified voters. 2 Under 
a constitution declaring that " every white male citizen of the 
United States, of the age of twenty-one years, who shall have 
been a resident of this state one year, and of the county 
in which he claims his vote five months, next before the election, 
shall be entitled to vote for all officers that now are, or hereafter 
may be, elected by the people," 3 the "taxable inhabitants," 
authorized by law to vote at school district elections, 4 must be 
citizens of the United States. 5 In the territories "the right of 



1 People v. Schermerhorn, 19 Barb. 
540. 

2 Const. 111. art. 7, s. 1 ; Stat. 111. c. 46, 
s. 65 ; Clark v. Robinson, 88 111. 498. 



3 Const. N. J. 1844, art. 2, s. 1. 

4 Stat. N. J. March 14, 1851. 

5 State v. Deshler, 1 Dutch. 177 ; Van 
Wyck v. Greene, 2 Bart. 631. 



14 



15 

suffrage, and of holding office, shall be exercised only by citizens of 
the United States above the age of twenty-one years, and by 
those above that age Avho have declared on oath, before a com- 
petent court of record, their intention to become such, and have 
taken an oath to support the constitution and government of the 
United States." 1 It was held by the committee of elections of 
the house of representatives of the United States, that the domi- 
cile of the father was the domicile of the son, during the minority 
of the son, if the son was under the control and direction of his 
father ; that the father of the sitting member having been an 
inhabitant of Florida, at the time of its transfer to the United 
States, July 17, 1821, the sitting member, who was then a minor, 
under his father's control, and had ever since resided in the United 
States, was a citizen of the United States and entitled to his seat, 
as a delegate from the territory of Florida. 2 Where a new con- 
stitution 'provides that ever person shall be entitled to vote who 
was an elector, on a certain day, under the old constitution, aliens, 
who were minors and for that reason not electors on that day, are 
not made electors by the new constitution. 3 In England a voter 
for a county, city, or borough, must be a male person of full age, 
and not subject to any legal incapacity ; 4 and not an alien. 5 

§ 23. Under a constitutional provision, conferring the right to 
vote upon all male inhabitants, above the age of twenty-one years, 
who have resided for a certain period in the state, citizenship is 
not an element of the qualification for the elective franchise. 6 

1 Rev. Stat. U. S. s. 1860. 59, the act, so far as is consistent with 

2 Levy's case, 1 Bait. 41. the tenor thereof, shall be construed as 

3 Beardstown v. Virginia, 76 111. 34. one with the enactments, for the time 

4 2 W. 4, c. 45, ss. 20, 27 ; 7 and 8 W. being in force, relating to the represen- 
3, c. 25, s. 8. tation of the people, and with the regis- 

5 7 and 8 Vict. c. 66, s. 5. tration acts. 

By the Representation of the People R Sprague v. Houghton, 3 111. 377 ; 

Act, 1867, in respect of the franchises Stewart v. Foster, 2 Binn, 110. 

conferred by that act, a similar qualifi- But the supreme court of Massachu- 

cation of person, age, and capacity is setts held that, in a statute relating to 

required. By 30 and 31 Vict. c. 102, s. letters of administration on the estate of 

56, the franchises conferred by that act "inhabitants of and residents in the 

are to be in addition to, and not in sub- same county at the time of the decease," 

stitution for, any existing franchises, but the term inhabitant imported, not domi - 

so that no person shall be entitled to cile merely, but citizenship and munic- 

vote for the same place, in respect of ipal relations. College v. Gore, 5 Pick., 

more than one qualification ; and by s. 370. 



16 

Under a statute authorizing freeholders, housekeepers, and other 
inhabitants of a borough, who have resided there during a pre- 
scribed period of time, and paid the required tax, to vote for 
borough officers, an alien, who has resided during the time pre- 
scribed, and paid the tax specified in the statute, is legally qualified 
to vote for officers of the borough. 1 The power of the states to 
prescribe the qualifications of voters has been practically construed, 
in several states, to cover the extension of the elective franchise 
in the choice of electors of president and vice-president and rep- 
resentatives in congress, to persons who are not citizens of the 
United States. Unnaturalized foreigners are permitted to vote 
for representatives in congress and for electors of president and 
vice-president, in several of the states, upon the declaration of 
their intention to become citizens. An alien lawfully assessed, 
paying the tax, and, in other respects qualified under the statute 
of Pennsylvania, is entitled to vote, although he may Have been 
naturalized within the period of ten days preceding the election. 2 . 
§ 24. Under a statute declaring that "no person shall be so en- 
titled as a burgess, or freeman, in respect of birth, unless his 
right be originally derived from, or through, some person who was 
a burgess, or freeman, or entitled to be admitted a burgess, or free- 
man, previously to the first day of March, in the year 1831, or 
from, or through, some person who, since that time, shall have 
become, or shall hereafter become, a burgess, or freeman, in re- 
spect of servitude," 3 it was held that A. and B., who were elected 
freemen of a borough and were both sons and grandsons of free- 
men, although their fathers had not been elected freemen before 
1831, because not of age, were entitled to be registered, as free- 
men, whose right was " originally derived from, or through, some 
person who was a freeman," that is to say the grandfather of each. 4 
The nomination of a corporation officer, in a modern charter, 
by necessary intendment makes him a free burgess of the borough, 
if he was not so before. 5 

1 Stewart v. Foster, 2 Binn, 110. The shall have power to elect," &c. Stat, 

statutory provision was as follows : "Thd Penn. 1804, p. 199, s. 2. 
freeholders, housekeepers, and other 2 Anon. 1 Brewst. 158. 

inhabitants of said borough, who have 8 2 W. 4, c. 45, s. 22. 

resided within the same at least one year 4 Gaydon v. Bencraft, Hop. & Phil. 97. 

immediately preceding the election, and 5 Rex v. Downes, 5 B. & C. 182. 

within that time paid a borough tax, 



17 

§ 25. The fourteenth amendment of the constitution of the 
United States makes all persons born in the United States, and 
subject to the jurisdiction thereof, citizens of the United States 
and of the state wherein they reside. In the sense of the consti- 
tution, and of the judiciary act of 1789, he who is incorporated 
into the body of the state, by permanent residence therein, so as 
to become a member of it, must be a citizen of that state, though 
born in another. In other words a citizen of the United States 
must be a citizen of that state in which his domicile is placed. 1 
The child of a father, who was a citizen of the United States, af- 
ter the treaty of peace with Great Britain, by which the independ- 
ence of the United States was acknowledged, and after the adop- 
tion of the constitution of the United States, but before the 
enactment of the law of April 14, 1802, was not an alien, although 
born without the limits of the United States. 2 

§ 26. By the common law when a subject is travelling, or so- 
journing, abroad, either on the public business, or on lawful oc- 
casion of his own, with the express or implied license and sanc- 
tion of his sovereign, and with the intention of returning, as he 
continues under the protection of the sovereign power, so he re- 
tains the privileges, and remains subject to the obligations of his 
allegiance ; and the case of his children born abroad is an excep- 
tion to the rule which makes the place of birth the test of citizen- 
ship. 3 A residence, by a father, within the United States, and an 
adherence to its government, from the commencement of the revo- 
lutionary war until after the definitive treaty of peace of 1783, 
conferred all the rights of citizenship both upon himself and upon 
his minor child residing in his family. And, although the child 
may have removed, immediately after becoming of age to act for 
himself, into a British province and adhered to its government, he 
is, on his return to the United States, entitled to the rights of 
citizenship. 4 A person who was born in Boston, Massachusetts, 
and before July, 1776, removed to Canada and never afterwards 
returned, but was never expatriated, by virtue of any statute, or 
any judgment at law, remained a citizen of Massachusetts. 5 

Prentiss v. Executors, 1 Brock. 389. 3 Ludlam v. Ludlam, 31 Barb. 486; Las 

2 Charles v. Manufacturing Co. 17 Portas v. Be la Motta, 10 Kich. Eq. 38. 
Pick. 70. 4 Calais v. Marshfield, 30 Me. 511. 

5 Ainslie v. Martin, 9 Mass. 454. 



18 

§ 27. The children of a citizen of Vermont, born subsequently 
to April 14, 1802, in a foreign country, to which their father 
had removed, animo manendi, who return with their father to 
the United States, after they become of age, are aliens. 1 A 
person who removed to the territory of Louisiana, after the 
treaty of Paris of 1803, and before the admission of Louisiana, 
into the union, as a state, and was an inhabitant of Louisiana 
from that time until the admission of the state into the union, 
did not, upon such admission, become a citizen of the United 
States. 2 

§ 28. Congress was empowered, by the constitution, to " establish 
an uniform rule of naturalization," 3 and in execution of the power 
so conferred, has enacted many statutory provisions for the natu- 
ralization of aliens. 4 It was held by the circuit court of the Penn- 
sylvania district, in 1792, that, under the constitution, the authority 
to naturalize was vested concurrently in the federal and state gov- 
ernments ; that the authority of the states could not be exercised 
in contravention of the uniform rule established by congress ; that 
the reason for investing congress with the power of naturalization 
was to guard against too narrow, not against too liberal, a mode of 
conferring the rights of citizenship ; that while the states could 
not exclude those citizens who had been adopted by the United 
States, they could adopt citizens upon easier terms than those 
which congress might deem it expedient to impose. 5 But doubt 
was expressed on the question by the same court in 1797 ; 6 and 
in 1817, Chief -Justice Marshall, delivering the opinion of the 
supreme court of the United States, said : " That the power of 
naturalization is exclusively in congress does not seem to be, and 
certainly ought not to be, controverted." 7 In 1814, it was held, 
by the circuit court of the United States, that the exercise, by the 
state governments, of the power to enact bankrupt and naturaliza- 
tion laws was in conflict with the provision of the federal consti- 
tution conferring upon congress power to enact uniform laws upon 
the same subjects. 8 In 1847, Chief-Justice Taney, in his decision 

1 Albany v. Derby, 30 Vt. 718. 5 Collet v. Collet, 2 Dall. 294. 

2 State v. Primrose, 3 Ala. N. S. 546. 6 United States v. Villato, 2 Dall. 370. 

3 Const. U. S. art. 1, s. 8. 7 Chirac v. Chirac, 2 Wheat. 259. 

4 See 2 Stat. 153 ; 2 Stat. 292 ; 2 Stat. 8 Golden v. Prince, 3 Wash. C. Ct. 
811 ; 3 Stat. 259 ; 4 Stat. 69 ; 4 Stat. 310 ; 313. 

9 Stat. 240. 



19 

of the "license cases," said: "In this case 1 it might well have 
been doubted whether the grant in the constitution itself did not 
abrogate the power of the states, inasmuch as the constitution also 
provided that the citizens of each state should be entitled to all 
the privileges and immunities of citizens in the several states ; and 
it would seem to be hardly consistent with this provision to allow 
any one state, after the adoption of the constitution, to exercise a 
power which, if it operated at all, must operate beyond the terri- 
tory of the state, and compel other states to acknowledge as citi- 
zens those whom they might not be willing to receive." 2 

§ 29. The powers given to the state courts, by the naturalization 
laws, are naked powers, which impose no legal obligation on courts 
to assume and exercise them, and such exercise is not within their 
official duty, or their oath to support the constitution of the United 
States. 3 An act of a state legislature, entitled "An act to define 
the fees to be charged by the clerks of courts -for the naturaliza- 
tion of foreigners," directing that the "papers herein provided for 
shall be issued by the court, upon application of any individual 
entitled to receive them, and upon his complying with the provi- 
sions of the naturalization laws," 4 is equivalent to a legislative rec- 
ognition of the rule of naturalization prescribed by congress for the 
states, and a grant of authority to the state courts to exercise juris- 
diction in naturalization cases. 5 

1 Chirac v. Chirac, 2 Wheat. 259. while the constitution authorizes con- 

2 License cases, 5 How. 585. See also gress " to establish an uniform rule of 
Passenger cases, 7 How. 556. naturalization," it does not authorize 

3 Morgan v. Dudley, 18 B. Mon. 693 ; congress to vest the power to administer 
Stephens' case, 4 Gray, 550 ; Rump. v. that rule either in the state courts or in 
Commonwealth, 6 Casey, 475. the courts of the United States. The 

4 1 Stat. Cal. 1853, p. 737. power of naturalization, not having been 

5 Knowles' case, 5 Cal. 300. In this conferred upon the federal government, 

case the supreme court of California has or withdrawn from the states, remained 

announced the following opinion : in the states, to be exercised by their 

The power to naturalize foreigners, courts, subject to the uniform rule pre- 

under the act of 1802, is a judicial power. scribed by congress. Accordingly the 

If it were one of the judicial powers of third section of the act of 1802, by which 

the United States it could not be vested it is enacted that " every court of record, 

in a state court ; for the constitution ex- in any individual state, having common 

pressly declares that " the judicial power law jurisdiction and a seal, or clerk, or 

of the United States shall be vested in prothonotary, shall be considered as a 

one supreme court and in such inferior district court, within the meaning of this 

courts as the congress may, from time act," does not confer jurisdiction of nat- 

to time, ordain and establish." And, uralization cases upon state courts, but 



20 

§ 30. Only courts of record constituted such for general pur- 
poses, are invested with the power to naturalize foreigners, by the 
statutory provision that " every court of record, in any individual 
state, having common law jurisdiction, and a seal and clerk, or 
prothonotary, shall be considered as a district court within the 
meaning of this act. 1 A court of record, which has common law 
jurisdiction of only three actions, and of those only where the 
amount in controversy is limited, has not common law jurisdiction 
within the meaning of the naturalization law of 1802, 2 and has 
no power to naturalize foreigners, under that law. 3 But it has 
since been held, by the same court, that the naturalization law of 
congress does not require that the court of record shall have a 
general common law jurisdiction, but only that it shall have com- 
mon law jurisdiction, a seal, and a clerk. 4 Under the act of April 
14, 1802, providing that aliens may be admitted to become citi- 
zens of the United States by the " supreme, superior, district, or 
circuit court of some one of the states, or of the territorial juris- 
dictions of the United States," it was held to be competent for the 
county court of the territory of Michigan to admit aliens to citi- 
zenship. 5 A provision, in a new constitution, to the effect that 
every person shall be entitled to vote who shall have obtained a 
certificate of naturalization, before any court of record, in the 
state, prior to a day designated, confers the right of suffrage upon 
all persons naturalized before that day, even by such courts of 
record as had no jurisdiction, under the laws of congress, to admit 
aliens to citizenship, but it does not confer the right of suffrage 
upon their minor sons afterwards becoming of age. 6 

§ 31. The powers conferred upon the courts, in admitting aliens 

merely designates the class of courts courts, and invests them with federal 
which may be invested with such juris- powers. The answer is that judges of 
diction by the states. The opposite view federal courts cannot be appointed by 
is that the authority ' ' to establish an state authorities, or by mere act of con- 
uniform rule of naturalization " carries, gress. 

by implication, the power to administer l Mills v. McCabe, 44 111. 194 ; 2 U. S. 

the rule, and that the clause of the act Stat. p. 155, s. 3. 

of 1802 which provides that the state 2 2 U. S. Stat., p. 155, s. 3. 

courts therein designated shall be con- 3 Supervisors v. Davis, 63 111. 405. 

sidered as district courts, within the 4 Dale v. Irwin, 78 111. 170. 

meaning of the act, does not confer fed- 5 Biddle v. Kichard, 1 C. & H. 407. 

eral powers upon state courts, but makes 6 Beardstown v. Virginia, 76 111. 34. 
certain state courts, pro hoc vice, federal 



21 

to the rights of citizenship, are judicial and not ministerial, or 
clerical, and consequently cannot be delegated to the clerks, but 
must be exercised by the court itself. An examination must be 
made in each case sufficient to satisfy the court of the following 
facts : (1) five years continuous residence of the applicant within 
the United States, and one year of like residence within the state, 
or territory, where the court, to which the application is made, is 
held ; (2) that the applicant, during the five years, has conducted 
himself as a person of good moral character ; (3) that he is, in 
principle, attached to, and well disposed towards, the constitution 
of the United States. 1 Applications for naturalization must be 
made in open court ; and evidence must be taken, by oral exami- 
nation of witnesses, in court, and not by affidavits previously pre- 
pared. Certificates of naturalization, issued by the clerk of a 
court, without a hearing before the judge, in open court, are 
void. 2 The petition for naturalization is to be examined by the 
judge. 3 But the preliminary application and oath of an alien 
may be received by a clerk of the court, as well as by the court 
itself. The act is ministerial, rather than judicial, in its char- 
acter. 4 

§ 32. An alien, who has immigrated to the United States since 
June 18, 1812, and who was not a minor on his arrival, is not en- 
titled to take the oath of naturalization on five years' residence, 
without having made the declaration of his intention to become 
a citizen required by the act of May 26, 1824, two years before 
his application to take the oath of naturalization. 5 It was provided 
in section 12 of the act of March 3, 1813 : " That no person, who 
shall arrive in the United States from and after the time when 
this act shall take effect, shall be admitted to become a citizen of 
the United States, who shall not, for the continued term of five 
years next preceding his admission as aforesaid, have resided 
within the United States, without being at any time, during the 
said five years, out of the territory of the United States." The 
clause " without being at any time during the said five years out 

1 Clark's case, 18 Barb. 444. . 4 Butterworth's case, 1 Woodb. & M. 

2 People v. Sweetman, 3 Parker C. K. 323. 
358. 5 Brownlee's case, 9 Ark. 191. 

3 Commonwealth v. Sheriff, 1 Brewst. 
183. 



22 

of the territory of the United States," was repealed June 26, 1848. 
The enactment of this clause in 1813, necessarily implied that 
continuous actual residence was not a requirement of the naturali- 
zation law of 1802, and its repeal restored that law to its original 
condition. It is not a valid objection, to the declaration of an 
alien's intention to become a citizen of the United States, that, in 
his renunciation and abjuration of " all allegiance and fidelity to 
every foreign prince, potentate, state and sovereignty, whatever, 
and particularly to the queen of Great Britain and Ireland," the 
name of the queen is not stated. 1 The naturalization laws of 
congress do not exclude females from the right to acquire citizen- 
ship by naturalization. 3 

§ 33. Under the statute of March 3, 1813, providing that " no 
person who shall arrive in the United States, from and after the 
time when this act shall take effect, shall be admitted to become a 
citizen of the United States, who shall not, for the continued term 
of five years next preceding his admission as aforesaid, have re- 
sided within the United States, without being at any time, during 
the said five years, out of the territory of the United States," 3 it 
has been held that an alien, who arrived in the United States after 
the third day of March, 1813, and, during the five years next pre- 
ceding his application for naturalization, had been in Upper 
Canada, though for a few minutes only, and without any intention 
of changing his residence, was not entitled to be naturalized. 4 

§ 34. A British subject arrived in the United States and de- 
clared his intention to become a citizen on the 10th of October, 
1807, and resided in the state of Pennsylvania from that time 
until the time of his death, in 1809. During the war of 1812, 
between the United States and Great Britain, and after the expi- 
ration of five years from the date of his arrival, his son petitioned 
to be admitted to the rights of citizenship, on taking the oaths 
prescribed by law. But it was held that, inasmuch as the father 
himself could not have been admitted to the rights of citizenship, 
during the war with Great Britain, if living, under the proviso of 
the act of April 14, 1802, which denies the privileges of citizen- 
ship to the subjects of a sovereign at war with the United States, 



i a 



Smith's case, 8 Blackf. 395. 3 4 Stat. U. S. p. 512, s. 12. 

a Brown v. Shilling, 9 Md. 74. "Paul's case, 7 Hill. 56. 



23 

at the time of the application, the son was excluded from natural- 
ization by the same proviso, which extended to the cases of wid- 
ows and children claiming naturalization under the supplemental 
act of March 26, 1804. * 

The registration, by inhabitants of New Mexico, of their elec- 
tion to remain Mexican citizens, under the eighth article of the 
treaty of Guadalupe Hidalgo, in accordance with the proclama- 
tion of the military governor of April 21, 1849, was sufficient to 
determine their citizenship, and to exclude them from the right of 
suffrage, under the organic law of the territory and the territorial 
statutes. After such election they could only acquire citizenship 
by regular naturalization. 2 

§ 35. The naturalization of the father ipso facto makes the son 
a citizen, if such son is under the age of twenty-one years, dwell- 
ing in the United States at the time of the naturalization of the 
father. 3 The children of persons duly naturalized before April 
14, 1802, being under age at the time of the naturalization of their 
parents, were, if dwelling in the United States on that day, to be 
considered as citizens. 4 If a minor son come to this country 
with his father, an alien, and the father become naturalized dur- 
ing the minority of the son, the son will become a citizen of the 
United States, on arriving at the age of twenty-one years. 5 A 
foreign born person, who was alleged to be illegitimate, came to 
this country as a member of the family of his reputed father, 
whose wife was the mother of the boy. The reputed father was 
naturalized while the alleged illegitimate child was an infant. It 
was held that, as the child was a member of his reputed father's 
family, when the father was naturalized, and was, at the time, an 
infant, he became naturalized by virtue of the act of congress, 
and the question of legitimacy could not be inquired into in the 
proceeding to contest the election. 6 

§ 36. When the statute provides that " the board of judges 
may, in their discretion, administer an oath or affirmation to the 
voter, and that thereupon his vote shall be received,'" 7 if a chal- 
lenged party should admit that he was an unnaturalized alien, or 



1 Overington's case, 5 Binn. 371. 

2 Otero v. Gallegos, 1 Bart. 177. 
" State v. Penny, 10 Ark. 621. 

4 Campbell v. Gordon, 3 Cr. 176. 



5 Morrison's case, 22 How. Pr. 99. 

6 Dale v. Irwin, 78 111. 170. 

7 Stat. Cal. 1853, p. 778, s. 29. 



24 

that his certificate had been issued by a court which had no juris- 
diction of the subject, the judges might properly, in their discre- 
tion, refuse to administer the oath and reject the ballot ; but 
they could not refuse to administer the oath, or reject the ballot, 
on the mere ground that he had failed to produce his certificate 
of naturalization, the law making his oath sufficient evidence. 1 
But all votes cast in Florida by persons of foreign birth, who 
fail to produce their naturalization papers, or papers declar- 
ing their intention to become citizens, as required by the con- 
stitution of that state, are illegal and will be excluded from the 
canvass. 2 

§ 37. The law presumes all persons who reside in the United States 
to be citizens of the United States until the contrary appears. 3 
If it appear that a voter was an alien by birth, the presumption 
of law will be that he was naturalized before he voted. 4 Prima 
facie it is to be taken that none but the votes of qualified voters 
have been received by officers whose sworn duty it was to reject 
all others, and this presumption is not overcome by proof that a 
voter is of foreign birth. 5 When an alien votes the presumption, 
in a contested election case, will be that he voted legally. The 
presumption against the commission of crime will overcome the 
presumption against the elector's qualifications, arising from the 
fact of his foreign birth ; but the voter's testimony that he was a 
minor when he came to this country, that he had never been nat- 
uralized, and did not know that his father had been, affords prima 
facie proof sufficient to overcome the presumption in favor of the 
legality of his vote. 6 Although the presumption is that an alien 
born person, who has in fact voted in Massachusetts, has been 
naturalized, the presumption will be overcome by proof that he 
had not been in the United States long enough to be entitled to 
naturalization, where neither the voter himself, nor his certificate 
of naturalization, is produced before the committee ; and his vote 
will be rejected. 7 Evidence that a person was in Germany, when six 
years of age, living with German parents, and remained in Germany 
until he was eighteen years of age, when he came to the United 

1 People v. Gordon, 5 Cal. 235. 5 New Jersey cases, 1 Bart. 22. 

2 Bisbee v. Finley, 2 Ells. 172. fi Beardstown v. Virginia, 76 111. 34. 

3 State v. Beackmo, 6 Blackf. 488. 7 Whittaker v. Cumniings, L. &. K. 360. 

4 Finley v. Bisbee, 1 Ells. 74. 



25 

States, and that he could not then speak the English language, is 
sufficient to justify the court in finding that he was an alien born. * 

§ 38. The grant of a certificate of naturalization, showing that 
the oath of citizenship prescribed by law was taken, is proof that 
such oath was taken. The grant of such a certificate is proof 
that the court was satisfied that the applicant had, during the 
periods mentioned in the statute, resided in the United States, 
and in the state, or territory, where the court was held, and 
behaved as a man of good moral character, attached to the prin- 
ciples of the constitution of the United States, and well disposed 
to the good order and happiness of the same. The oath, when 
taken, confers upon the applicant the rights of a citizen, and 
amounts to a judgment of the court for his admission to those 
rights. The fact that the record of naturalization, remaining in 
the clerk's office, does not expressly show that the applicant was 
admitted to citizenship, does not impair the effect of the certifi- 
cate granted. The fact that such record does not expressly show 
that any proof was made, or adjudication had, upon the question 
of good character, or of attachment to the principles of the con- 
stitution, or of devotion to the welfare of the country, does not 
impair the effect of the certificate granted. 2 

§ 39. This doctrine as to the effect of the certificate of naturaliza- 
tion is supported by the most cogent reasons. Applicants for 
naturalization, in the United States, are not generally well informed 
respecting our laws, or the methods of our courts. If irregularity, 
or error, should creep into the record, not one applicant in one 
hundred Avould be able to detect it, even if he had, as he has not, 
the right, enjoyed in ordinary proceedings inter partes, to be heard 
on the form of the record, or the mode of its entry. He takes the 
certificate which the court gives him, and, in the faith that he is 
a citizen of the United States thenceforth, through life, performs 
acts which, if his naturalization is invalid, are crimes, makes oaths 
which are unauthorized or false, and bargains which are ruinous to 
others or to himself ; exercises, without right, the functions of the 
juror, in cases involving property, liberty, and even life ; and holds 

1 Walther v. Rabolt, 30 Cal. 185. nam, 13 Wend. 524 ; McCarthys. Marsh, 

2 Campbell v. Gordon, 6 Cranch, 176 ; 1 Seld. 263 ; Priest v. Cummings, 16 
Coleman's case, 15 Blatchf. 406; Spratt Wend. 616; State v. Penny. 10 Ark. 616. 
v. Spratt, 4 Pet. 393 ; Ritchie v. Put- 



26 

offices, in which he is a mere intruder. It is not essential to the 
validity of the record of a judgment that it should be signed by 
the judge. At common law, the judgment record was never signed 
by the court or judge. " The plaintiff or defendant, when the 
cause is in such a state that, by the course of practice he is enti- 
tled to judgment, obtains the signature, or allowance, of the proper 
officer of the court, expressing generally that judgment is given in 
his favor, and this is called signing judgment, and stands in place 
of its actual delivery by the judges themselves." 1 "The signing 
of the judgment is but the leave of the master of the office for the 
attorney to enter the judgment for his client." 2 " On judgment, after 
verdict, in the king's bench, the master signs the postea in taxing 
costs, and this is the signing of judgment." 3 " The next proceed- 
ing is to enter the judgment on record. This is done by drawing 
up the proceedings, on the same roll on which the issue was en- 
tered, by way of continuation or further narrative of the proceed- 
ings there already recorded ; and the judgment is entered in such 
form as the attorney of the successful party conceives to be legally 
appropriate to the particular case, supposing that it were actually 
pronounced by the court. The roll, when complete by the final 
entry of judgment, is no longer called the issue roll, but has the 
name of judgment roll, and is deposited and filed of record in the 
treasury of the court." 4 

A statutory requirement that the judgment should be signed 
by the judge would be merely directory, in the absence of an ex- 
press provision that the judgment should be void if not so signed. 5 
But the court has no power, in its order of naturalization, to 
declare that an alien shall be held to have been a citizen from a 
time preceding the actual date of the order. 6 In Massachusetts 
a certificate of naturalization, issued by a competent court, and 
admitted to be genuine, is conclusive upon the question of citi- 
zenship. Evidence that it was issued, on fraudulent representa- 
tions as to the time of residence in the United States, is incom- 

1 Stephens, Pleadings, 137. Chesney, 20 Iowa, 431; Hamilton v. Bar- 

2 Styles' Pract. Judgt. ton, 20 Iowa, 505 ; Thompson ®. Cook, 
3 1 Manning Exc, 352, note o. 21 Iowa, 472; Vogle v. Grace, 5 Minn. 

4 Stephens, Pleadings, 138. 294 ; Jorgensen v. Griffin, 14 Minn. 464 ; 

5 Whitney v. Townsend, 67 N. Y. 40 ; Cannon v. Campbell, 2 Ells. 605. 
Kollinsv. Henry, 78 N. 0. 342; Van Vliet ° Dryden v. Swinburne, 20 W. Va. 
v. Phillips, 5 Iowa, 558 ; Childs v. Mc- 89. 



27 

petent. 1 In Pennsylvania a certificate of naturalization, in due 
form, properly attested, is prima facie, but not conclusive, evidence 
that the individual named in it was duly examined and sworn in 
open court, in the presence of some of the judges, according to 
the act of congress, and that it was regularly and lawfully issued. 
It cannot be collaterally attacked. 2 But while a certificate of 
naturalization cannot be impeached collaterally, in a contested 
election case, a judge of election cannot be indicted for refusing 
a vote, if he acted in good faith ; and when an entire issue of 
naturalization certificates has been pronounced illegal by two 
judges of the supreme court of the state, and a third judge has 
ascertained that forgeries of the seal have been committed, and 
that a counterfeit die is in existence, election officers cannot be 
indicted for rejecting a part of the same issue. 3 

§ 40. In Arkansas the judgment of a court of competent jurisdic- 
tion, in a naturalization case, is conclusive of its own validity, and 
closes the door to all enquiry into the regularity of the proceed- 
ings, where the record, tested by the laws in force at the time, 
shows no substantial defects. 4 In Wisconsin the record of the 
admission of an alien to citizenship, by any court authorized to 
perform the act, is a record of a judgment of such court, which 
imports absolute verity, and cannot be questioned, in any collat- 
eral proceeding. 5 

§ 41. If it is clearly inferable from the record of naturalization 
that an alien, born in Great Britain, had not, at least three years 
prior to his admission, by the court, declared, on oath, his intention 
to become a citizen of the United States, and to renounce all alle- 
giance to any foreign prince, or sovereignty, and particularly to 
the king of Great Britain by name, as required by the act of 1802 ; 
and that the court had mistaken the registry of the arrival of the 
alien in the United States for such declaration of intention, it 
seems that the naturalization is invalid. 6 But if the record, upon 
its face, is valid, it is conclusive as to the regularity of the pro- 
ceedings and of the naturalization of the alien ; and such record 

1 Quirk v. McDonald, L. & R. 229. 3 Commonwealth v. Sheriff, 1 Brewst. 

2 Commonwealth v. Leary, 1 Brewst. 183. 

270; Commonwealth v. Sheriff, id. 183. 4 State v. Penny, 10 Ark. 621. 

See also Cannon v. Campbell, 2 Ells. 5 State v. Hoeflinger, 35 Wis. 393. 

605. "Banks v. Walker, 3 Barb. (N. Y.) Ch. 

438. 



28 



cannot be contradicted by extrinsic proof that no such declaration 
of intention had, in fact, been made. 1 It has been held by the 
supreme court of the state of Georgia that a clerk's certificate 
that, at a superior court held at Savannah, J. M. R., an alien, 
petitioned the court to be admitted a citizen, and, having, in all 
things complied with the law, in such case made and provided, 
and having first taken and subscribed in open court the oath of 
naturalization, was admitted a citizen of the United States, was 
not sufficient evidence of naturalization ; that it did not give the 
words of any part of the record, but purported to be a statement 
of what, in the clerk's opinion, was the legal import or effect of 
the different particulars of which the record consisted. 2 A clerk's 
certificate to a sworn declaration of intention to become a citizen 
of the United States, made by a voter whose qualification is dis- 
puted, may be impeached by parol proof that the oath was not 
in fact taken before the clerk, but was taken before a justice of 
the peace, to whom certificates had been delivered signed in blank 
by the clerk. 3 



1 Banks v. Walker, 3 Barb. (N. Y.) Ch. 
438. 

2 Miller v. Beinhart, 18 G-a. 239. The 
court stated that this decision was not 
in conflict with Campbell v. Gordon, 6 
Cr. 176, because, in that case, the court 
had before it, not only the certificate of 
the clerk, but also the minutes of the 
court. It is, however, to be observed 
that the certificate and minutes were 
identical in language. 

The certificate in Miller v. Beinhart 
was in the following words : "To all to 
whom these presents may come greeting : 
I, John F. Gilmartin, clerk of said court, 
do hereby certify and make known that, 



at a superior court, held at Savannah, 
in and for the county aforesaid, before 
the honorable William B. Flemming, 
Esq., judge of said court, on the 24th 
day of January, 1855, James M. Beinhart, 
an alien, and subject of the king of Ger- 
many, petitioned the court to be admit- 
ted a citizen, and, having in all things 
complied with the law, in such case 
made and provided, the said James M. 
Beinhart was, accordingly, admitted a 
citizen of the United States of America, 
having first taken and subscribed, in 
open court, the oath of naturalization." 
3 State v. Stumpf, 23 Wis. 630. 



CHAPTEK III. 

QUALIFICATIONS OF VOTERS ; RESIDENCE, DOMICILE, INHABITANCY. 

1. In general, their nature and dif- (7) Time and place of residence, 56-59 

ferences. ' 2. Indian reservations . . 60, 61 

(1) Meaning of the terms . .42 3. Forts, arsenals, and navy yards, 62-64 



(2) Residence generally a quali- 

fication . . . .43 

(3) Domicile . . . 44,45 

(4) Intention . . . 46-51 

(5) Residence of family . . 52 

(6) Temporary absence . 53-55 



4. Military reservations, in the ter- 

ritories . . . .65 

5. Paupers . . . .66,67 

6. Railway and canal laborers . 68 

7. Students .... 69,70 

8. Soldiers -. . . . 71-74 



§ 42. The primary signification of the word residence is the 
same as that of the word domicile. It means the place where a 
man establishes his abode, makes the seat of his property, and 
exercises his civil and political rights. In the absence of a differ- 
ent definition, express or implied, that is the meaning of the term 
when used in a state constitution. i The word " residence," as 
used in the constitution of Pennsylvania and as ordinarily used 
in constitutional, Or statutory, provisions, relating to the qualifica- 
tions of voters, is equivalent to " domicile," not in the sense in 
which a man may have a commercial domicile, or residence, in 
one state, or country, while his domicile of origin and allegiance 
is in another, but in the broadest sense of the term. 2 The word 
" inhabitants," in a statute, has not, in itself, any definite legal 
meaning, but must be explained, in each case, either by reference 
to the context and objects of the statute, or extrinsically, as by 
evidence of usage. 3 It is difficult to give an exact definition of 
habitancy. In general terms one may be designated as an in- 
habitant of that place which constitutes the principal seat of his 
residence, of his business pursuits, connections, and interests, and 

of his political and municipal relations. 4 

i 

1 Chase v. Miller, 41 Penn. St. 403. ordained that, within the borough of 

2 Cessna v. Myers, Smith, 60. Sligo, there should be one body politic 
3 Rex v. Machiter, 6 A. & E. 153, and corporate, consisting of a provost, 
4 Lyman v. Fiske, 5 Pick. 234. twelve free burgesses, and commonalty, 
Where a municipal charter (11 Jac. 1) "and that all inhabitants, within said 

29 



30 

§ 43. Residence is generally a qualification for the exercise of 
the right of suffrage. It is prescribed by constitutional, or stat- 
utory provisions in the United States. In some cases residence, 
for a specified period of time, in the voting precinct, is required. 
In others residence, for a prescribed period, in the state, or elec- 
tion district, suffices. In others residence for a specified period 
of time, in the state, and for the same, or a shorter, period, in the 
precinct, or election district, is required. 1 In the absence of stat- 
utor}^ provisions on the subject, non-residence is not a disqualifica- 
tion for admission to a municipal corporation in Scotland, or for 
exercising the right of suffrage immediately after such admission. 2 
There is no repugnance between a constitutional provision, extend- 
ing the right of suffrage to persons who have " resided in this state 
one year," 3 and a statutory declaration, that " a permanent abode 
is necessary to constitute a residence." 4 The requirement of a 
permanent abode is implied in the constitution. 5 A corporation 
by-law, providing that " it shall and may be lawful " for a court, 
holden annually, to admit, to the freedom of the town, such per- 
sons of good fame as have been resident therein for one whole 
year, who shall have the right to vote for councillors, does not 
confer upon every person, who has been a resident for that period, 
an absolute right to be admitted to the freedom of the borough. 6 

§ 44. Domicile is of three kinds : by birth ; by choice ; and by 

borough and said lands" ( " et quod of a right to the freedom of the corpor- 
omnes inhabitantes infra prsedictam vil- ation, on the mere ground of inhabitancy, 
lam et terras predictas ") ; should forever and that, since the grant of the charter, 
be a body politic and corporate, and the freemen had beeu uniformly elected 
then, after appointing the first provost by the provost and burgesses ; and the 
and first burgesses by name, proceeded court of king's bench, in Ireland, held 
to describe who should be the common- that the charter admitted a construction 
alty, in these words, " and all inhabitants consistent with usage, and refused to 
of said borough, and as many of such grant a mandamus to admit a person to 
other men as the provost and free bur- the freedom of the borough on the mere 
gesses of the same borough, for the time ground of inhabitancy. Rex v. Pro- 
being, shall admit into the liberty of said vost, Fox & Sm. 96. 
borough" (" ac omnes inhabitantes vil- 'For residence as a qualification for 
lam prsedictam et totidem tales alios office see post §§ 141-152. 
homines, quos propositus et liberi bur- 2 Hope v. Magistrates, 2 Fac. Dec. 528. 
genses ejusdem burgi, pro tempore ex- 3 Const. 111. 1874, art. 7, s. 1. 
istentes, in libertatem burgi praedicti 4 Rev. Stat. 111. 1874, c. 46, s. 66. 
admiserint "), it appeared that the uni- 5 Johnson v. People, 49 111. 505. 
form usage had been against the claim 6 Rex v. Bailiffs, 1 B. & C. 83. 



31 

operation of law, as that of the wife arising from marriage. 1 By 
the general laws of the civilized world the domicile of the parents, 
at the time of an infant's birth, or what is called the domicile of 
origin, constitutes the domicile of the infant, and continues until 
abandoned, or until the acquisition of a new domicile in a different 
place. As it gives political rights, which are not lost by a mere 
change of domicile, it is recovered by any manifestation of a dis- 
position to resume the native character, perhaps by a surrender 
of a new domicile. Indeed it may be considered rather as sus- 
pended than as annihilated. 2 Each successive domicile continues 
until the acquisition of another. 3 If a man acquire a new domicile, 
different from that of his birth, and then remove from it, with an 
intention to resume his native domicile, the latter will be 
reacquired, even while he is in itinere, for it will revert from 
the moment the other is given up. The circumstances requisite 
to establish the domicile are flexible, and easily accommodated 
to the real truth and equity of the case. Thus it requires fewer 
circumstances to constitute domicile, in the case of a native subject, 
who returns to resume his original character, than to impress the 
national character on a stranger. The intent is, in each case, the 
real subject of inquiry ; and, when the residence is voluntary, 
without restraint, it is usually held to be complete, whether it is 
an actual, or only an implied, residence. 5 

§ 45. Every man must have a domicile somewhere ; he can have 
but one for the same purpose, at the same time ; and upon the 
acquisition of a new domicile the old one is relinquished. Very 
slight circumstances must often decide the question of domicile. It 
depends upon the preponderance of evidence in favor of different 
places. It may happen that the evidence of facts, tending to es- 
tablish the domicile in one place, would be altogether conclusive 
but for the existence of facts still more conclusive, fixing it be- 
yond question in another. A seaman, without family or prop- 
erty, may be absent from his domicile of origin, for years, without 
losing such domicile, if he acquire no actual residence elsewhere. 6 

1 Story Confl. Laws, s. 49. "Thorndike v. Boston, 1 Mete. (Mass.) 

2 Prentiss v. Executors, 1 Brock. 389. 242; Opinion of Justices, 5 Mete. (Mass.) 

3 Ordway v. Howe, L. & B. 3. 587 ; Abington v. North Bridgewater, 23 

4 Story Confl. Laws, s. 48 ; The Francis, Pick. 170; McDaniel v. King, 5 Cush. 
1 Gal. 614 ; The Indian Chief, 3 Bob. 12. 469. 

5 1 Kent Com. 84. 



32 

• 

A person cannot have a domicile, for political purposes, in one 
place, and an actual home in another place. 1 

§ 46. The place of a man's legal residence is that of his per- 
manent establishment and true home, to which, as such, when- 
ever he is absent, he intends to return. This legal residence does 
not exclude an actual temporary residence at another place ; nor 
is it suspended or interrupted by such temporary residence. The 
temporary residence and the legal residence may, and in fact often 
do, run along contemporaneously through an extended period of 
time, the former in no way affecting the validity or continuity of 
the latter. The senator or representative of the United States has 
a legal residence in his own state. There is his principal and fixed 
residence and true home, to which, when absent, he intends to re- 
turn. He has a temporary residence at the seat of government ; 
but that is not his legal residence. He may actually reside, with 
his entire family, in his own house, at Washington, during a large 
part of each year, or even during the whole of his term ; but his 
residence in Washington is not his legal residence. The minister 
of the United States may actually reside, for a long term of years, 
with his family, in his own house, in a foreign capital, without 
once returning to the United States ; but his legal residence in the 
United States is not suspended or interrupted. The difficulties 
involved in the attempt to frame a precise general definition of 
legal residence which shall be applicable to all cases, are constantly 
suggested by courts and text-writers. Such a definition must ap-' 
ply, not only to the man who, having inherited the farm on which 
he was born, has resided thereon since his birth, and intends to 
reside thereon until his death, but also to the clergyman and the 
railroad builder, who, although their residence, at the places of 
their employment, is expected and intended to be brief, may, 
nevertheless, acquire a legal residence in those places, as the courts 
have often decided. It is evident that the element of permanence 
differs in degree in these cases ; that while it may mean fifty years 
in the case of the farmer, it may only mean two years in the case 
of the Methodist clergyman, or six months in the case of the rail- 
road laborer. So the word " home " suggests relations differing 
in breadth and strength, though not in kind, when applied on the 
one hand to the farmer, who has resided, since his birth, and ex- 

1 Jenkins v. Shaw, L. & R. 266. 



33 

pects to reside until his death, on the same spot, and, on the other 
hand, to the clergyman, whose home may change in two years, or 
to the railroad laborer, whose home may change in two months. 1 
§ 47. An intention to become a citizen of the state and to aban- 
don former citizenship, in another state, is essential to the acquire- 
ment of a legal residence. A residence, for purposes of business, 
or pleasure, will not be sufficient. There must also be an intention 
to remain ; but this intention is entirely consistent 1 with a purpose 
to remove at some future indefinite time. 2 Residence is not lost 
by a temporary absence, for purposes of business, or pleasure, 
with an intention to return. 3 The county, into which an elector 
removes, with his family, intending to make it his place of resi- 
dence, is the county in which he should vote, so long as his family 
remain there, although he may be absent himself, engaged in work 
or business elsewhere. 4 Domicile, or residence, in a legal sense, 
is determined by the intention of the party. He cannot have two 
homes at once, and when he acquires the new home, he loses the 
old one. But to effect this change there must be both the act and 
the intent. 5 The test of domicile is the intent, as established by 
all the facts of the case, not merely by the declarations of inten- 
tion, made at or before the time of the trial, but also by all the 
attendant circumstances. 6 The question of domicile is a question 
of fact, and the intention is evidence of the fact, but not conclusive ; 
for, to constitute a domicile, both fact and intent must concur. 7 

1 Judge Story says : "In a strict and or business, of a temporary nature, with 

legal sense, that is properly the domicile an intention to return, no one supposes 

of a person where he has fixed his true his domicile to be changed thereby." 

and permanent home and principal es- 4 Enc. Am. Appendix. See also Lincoln 

tablishment, and to which, whenever he v. Hapgood, 11 Mass. 530; State v. Judge, 

is absent, he has the intention of return- 13 Ala. 806 ; Guyer v. O'Daniell, 1 Binn. 

ing. The act of residence must be coup- 349 ; Williams v. Whiting, 11 Mass. 423 ; 

led with the intention of making it the Lyman v. Fiske, 5 Pick. 234 ; Chase v. 

real, substantial home of the party, ex- Miller, 42 Penn. St. 404. 

elusive of all others. If, therefore, a 2 Miller v. Thompson, 1 Bart. 118 ; 

person, having his home in one place, Piggott's case, id. 463. 

goes to another, for temporary purposes, 3 State v. Judge, 13 Ala. 806 ; Lincoln 

but with an intention to return, his dom- v. Hapgood, 11 Mass. 350. 

icile is not changed by such absence, nor 4 People v. Holden, 28 Cal. 124. 

does he acquire a new domicile in the 5 State v. Frost, 4 Harr. 558; McDan- 

place of such temporary residence. If iel's case, 3 Penn. L. J. 310. 

a person go on a voyage to sea, or to a 6 Keith &. Mayhew, L. & R. 239. 

foreign country, for health, or pleasure, T King v. Park, L. & R. 155. 

3 



34: 

Mere actual residence, however prolonged, will not constitute 
legal residence, unless accompanied with the intention of making 
the place a home ; nor will the shortness of the actual residence 
defeat the acquisition of a legal residence, when accompanied with 
such intention. 1 A change of domicile does not depend so much 
upon the intention to remain in the new place, for a definite, or 
indefinite, period, as upon the fact that it is without a definite 
intention to return ; and even an intention to return, at a remote, 
or indefinite, period, may be controlled by other circumstances 
establishing the fact of domicile in the new place. The intention 
to remain is to be distinguished from the mere declaration of such 
intention ; the intention is a fact to be proved by evidence, but 
the declaration of intention is merely evidence tending to prove 
such fact, liable always to be controlled by other evidence, and 
being but one element in determining the fact ; and where the 
acts of the person are inconsistent with his declarations, the inten- 
tion must be ascertained, as a fact, from the whole evidence. 
When a person leaves one place of residence, and becomes an 
actual resident in another place, and such latter residence is not 
in fact temporary, the latter place becomes his domicile ; and his 
political rights and duties attach to him there, whether he so 
intends it or not. 3 Less evidence is necessary to establish the 
intention of remaining, when the person returns to his former 
domicile, than when he removes to a new place. 3 

§ 48. When persons are engaged in business, at two or more 
different places, devoting a part of their time to each, the inten- 
tion of such persons, if it can be ascertained, will exert a control- 
ling influence in determining the domicile. 4 A man may actually 
sojourn in a township for six months and still not be a resident of 
such township ; and he may be a resident when he has not 
sojourned a week. 5 A mere intention to remove from the pre- 
cinct, immediately after the election, does not amount to a change 
or loss of residence. 6 Where the actual facts leave the place 
of residence doubtful, intentions may prevail, to show of which 

1 Ordway •». Howe, L. & R. 3. Gore, 5 Pick. 370; Somerville v. Somer- 

2 Jenkins v. Shaw, L. & R. 266. ville, 5 Ves. 787. 

3 Ordway v. Howe, L. & R. 3. 5 State v. Minnick, 15 Iowa, 123. 

4 Boyd v. Beck, 29 Ala. 703 ; Story 6 Darragh v. Bird, 3 Oregon, 229. 
Confl. Laws, s. 47 ; Harvard College v. 



35 

place the individual was actually an inhabitant. But a man who 
resides, with his family, in one town, cannot gain a residence in 
another town, before he removes his family to such other town, 
merely by virtue of an intention to remove. 1 

§ 49. An orphan, aged nine years, was apprenticed to a resident 
of Indiana, with whom he remained until nineteen years of age, 
when he went to another county and, becoming acquainted with 
a man who was on his way to Iowa, entered his service and 
accompanied him to that state. He wrote to his master that he 
was going to Iowa, to see the country, and intended to return 
when that object should be accomplished. He remained in Iowa 
about three years. Soon after he arrived at the age of twenty- 
one years, he wrote to his former master that, as soon as he 
could get money enough to pay his travelling expenses, he should 
return home. While in Iowa he worked for farmers at different 
places. After his return to Indiana he said to a witness that he 
did not expect to remain in the latter state. On an information 
for illegal voting, after his return, he was found guilty, on the 
ground that, having been a minor, while in Indiana, he could not 
have gained a voting residence there. But the supreme court 
reversed the judgment and said : " The residence of Miller, the 
master, was the residence of his apprentice, the appellant, for 
every purpose known to the law, and, whilst a minor, the appren- 
tice could not, by leaving his master, and going to another state, 
change that residence. But after the defendant arrived at full 
age he could elect to change his residence, and whether he did or 
not, in this case, depended on his intention. If it was the inten- 
tion of the appellant to return to this state, and he was only pre- 
vented from doing so by the lack of means to pay his expenses, 
and he did, in fact, return in accordance with his intention, then 
he never lost his residence in this state, although it was not his 
intention to remain here permanently. A mere intention, unac- 
companied by a removal, will not lose a man his residence. The 
defendant never having actually left this state, with an intention to 
change his residence, he was still a resident ; it took something 
more than intention, as to his future course, to lose that 
residence." 2 

1 Baker's case, C. S. & J. 599. 2 Maddox <o. State, 32 Ind. 111. 



36 

§ 50. The habits of our people are migratory. To persons, 
especially young men, engaged in some of the most useful occu- 
pations, the choice of a residence is often experimental and tem- 
porary. The home is chosen, with intent to retain it until oppor- 
tunity shall offer a better. But if it be chosen as a home, and not 
as a mere place of temporary sojourn, to which some other place, 
which is more truly the seat of the affections or interests, has 
superior claim, the policy of the law attaches to it all the privileges 
which belong to residence. 1 A voter, who leaves the state, with 
an intention of changing his residence and taking up his abode 
and making his home elsewhere, loses his residence and his right 
to vote in the state left ; and he will be subject to indictment for 
illegal voting, if he afterward vote in that state. 2 An unmarried 
man, who was born and brought up in Franklin, Massachusetts, 
and resided there, with his parents, until May, 1879, and then 
went to Hopkinton to work, and remained there, except during the 
period from November, 1879, to February, 1880, which period he 
spent, with his parents, in Franklin, and was taxed in both towns 
in May, 1880, but asked for an abatement in Hopkinton, on the 
ground that he was taxed in Franklin and wished to retain his 
home at that place, because for part of the year he was without 
work at Hopkinton, and paid his tax at the latter place only upon 
a tax-warrant, and secured its abatement after the election, but 
paid his tax in Franklin, was not a resident of Hopkinton qualified 
to vote there in the election of 1880. 3 Where a voter, who had 
lived in Massachusetts with his father, owning real estate there, 
went to New York, in the fall of 1866, to engage in business, 
intending to remain there as long as business was good, and was 
called back, by the illness of his father, in June, 1867, it was held, 
upon his statement that he had no intention of changing his home, 
but intended to return, that he was a resident of Massachusetts 
and qualified to vote at the election in 1867. 4 

§ 51. A voter, who was a school teacher in Massachusetts, noti- 
fied the school committee, in July, 1867, that he should not 
remain longer, unless his salary was increased, and, upon their 
refusal to increase it, went to Maine, where he made arrange- 
ments to enter a lawyer's office, and, in the latter part of August, 

'Cessna v. Myers, Smith, 60. 3 Claflin v. Wood, L. & R. 353. 

2 State v. Frost, 4 Harr. 508. 4 Shaw v. Abbott, L. & E. 139. 



37 

upon invitation from the school committee, who had been unable 
to employ a teacher to fill his place, returned to Massachusetts, 
having obtained a release from his employer, and resumed his 
school there. It was held that, by his removal to Maine, he 
changed his residence, and that he was not entitled to vote at 
the election in 1867. 1 Where a voter, who had been living, with 
his wife, at his father's house, in Middleborough, Massachusetts, 
went to Hudson, in the same state, in the fall of 1866, to obtain 
work, and remained there eight months, with his wife, boarding 
for a time, and afterwards keeping house, paying his tax for 1867 
in Hudson, intending, as he said, not to make his home there, 
but only to stay there while he could get work, and returned to 
Middleborough in June, 1867, it was held that he was not quali- 
fied to vote in Middleborough at the election in 1867. 2 

§ 52. As a general rule, when a man is the head of a family and 
is a .housekeeper, the domicile of the family is presumed to be 
his legal place of residence, 3 and, if his family reside in one place, 
while he does business in another, the presumption will be that 
the former place is his residence. 4 A resident of A., who, having 
received, on the 28th of October, an appointment, which ren- 
dered it convenient for him to reside at B., began at once to 
prepare for a removal to B., engaged a house in B. on the 29th 
of October, transacted business daily at B. until November 12, 
returning to his family at A. every night, excepting three, which 
he spent, more by accident than design, in B., and on the 12th 
of November removed, with his family, into the house at B., con- 
tinued to be an inhabitant of A. until he removed with his family 
to B. 5 A man who, after residing and transacting business many 
years in Ohio, removed, with his family, to Kentucky, with the 
intention of returning to Ohio, and never voted in Kentucky, but 
uniformly voted in Ohio, and, after an absence of three years, in 
pursuance of his original intention, returned to Ohio, did not lose 
his citizenship in Ohio. 6 A voter, who goes to another state for 
the purpose of settling there, and leases land and purchases 
materials for a building, and, having returned to his former home 
after some delay, removes his family to such state, and afterwards 

1 Shaw v. Abbott, L. & R. 139. 4 King v. Park, L. & R. 155. 

2 lb. B Williams fl. Whiting, 11 Mass. 424. 

3 Yonkey v. State, 27 Ind. 236. 6 United States v. Thorpe, 2 Bond, 340. 



38 

resides there permanently, does not lose his old domicile, or acquire 
a new one, until his actual removal, with the intention of remaining. 
An intention to change the domicile, without an actual removal 
with the intent of remaining, does not change the domicile. 1 

§ 53. A person, who has his permanent home in one town and 
is a legal voter there, does not lose his right to vote in that town, 
by remaining temporarily and voting in another town, in the same 
state. 3 Under a statute of New Jersey requiring that every voter 
shall have "resided in the county, where he claims a vote, for 
at least one year immediately preceding the election," 3 a person, 
who has his fixed domicile, or permanent home, in the state, does 
not lose his right to vote, by spending a part of every winter, with 
his family, in a hired house, or lodgings, in Philadelphia, or New 
York. 4 The fact that a voter has entered a homestead and left 
his real residence, from time to time, to visit his homestead, in 
order to comply with the homestead laws, while it tends to show 
a purpose to practice a fraud upon the United States, does not 
estop him from claiming his real residence for the purposes of 
voting. 5 Under an English statute, declaring that no person 
shall be registered, as a parliamentary elector, unless " he shall 
have resided, for six calendar months next previous to the last 
day of July in such year, within such city, or borough, or within 
seven statute miles from the place where the poll of such city or 
borough shall heretofore have been taken," 6 it was held that a 
man, imprisoned, without option of fine, for assault, in a jail 
more than seven miles from the borough, did not reside in the 
borough, though he had in the borough his house, furniture and 
family, and intended to return there ; that in all cases of actual 
absence a legal right to return, at any moment, was essential to a 
constructive residence, as a qualification for voting. 7 

§ 54. Residence, in the sense of the Kentucky constitution of 
1833, is the same as home, or domicile. And the votes of journey- 
men mechanics, and other laborers, having no fixed, or settled, 
residence, but remaining, for the time, where they can obtain 

1 State v. Hallett, 8 Ala. 159. 5 Preston v. Culbertson, 58 Cal. 198. 

2 Lincoln v. Hapgood, 11 Mass. 350. °2 W. 4, c. 45, s. 32. 

3 Stat. N. J. June 1, 1820, s. 4. ? Powell ». Guest, Hop. & Phil. 149. 
4 Cadwallader v. Howell, 3 Harrison, 

N. J. 138. 



39 

» 

employment, are to be received. 1 This constitution contained the 
following provision : " In all elections, every free male citizen 
(negroes', mulattoes, and Indians excepted), who, at the time, hath 
attained to the age of twenty-one years, and resided in the state 
two years, or in the connty, or town, in which he offers to vote, one 
year, next preceding the election, shall enjoy the right of an 
elector ; but no person shall be entitled to vote, except in the 
county, or town, in which he may actually reside, at the time of 
the election." Under this provision a person, having the right of 
suffrage in Kentucky, does not lose it by a mere removal from the 
state ; but there must be evidence of his intention, at the time he 
departs, to leave the state permanently, or proof of his permanent 
location, to forfeit his right as a voter. 2 

§ 55. A voter was an indented apprentice, residing, with his 
master, at Concord, in the state of Massachusetts, when he at- 
tained his majority, in the month of October preceding the elec- 
tion ; he then went to Bangor, and worked there four months, for 
hire, and returned to Concord, where he remained until the elec- 
tion ; after the election he went to Weston, to work. It was held 
that he was a legal voter of Concord. 3 A voter was an indented 
apprentice, residing, with his master, at Concord, Massachusetts, 
when he attained his majority ; and he continued to reside there 
until the month of April preceding the election, when he went to 
Charlestown, in the same state, to work on a contract for one month ; 
at the expiration of the month he returned to Concord, on the Sat- 
urday before the election. When he returned to Concord he was 
undecided whether to remain there, or to return to Charlestown ; 
but the day after the election he returned to Charlestown, and 
entered into a contract to work for a year. It was held by the 
house of representatives of Massachusetts that he was a legal voter 
at Concord. 4 

§ 56. Whether a residence in the state, or in the county, or in 
the township or city, or in any other political division of the 
country, is a qualification for the exercise of the elective franchise, 
depends on the constitution and laws of the state. Villages, 
organized under the revised statutes of Wisconsin, are distinct 
municipal corporations ; and a resident and elector of such a 

1 Letcher v. Moore, C. & H. 715. 3 Merrick's case, C. S. & J. 85. 

2 lb. 4 Ib. 



40 

village cannot vote for town officers, at the town meetings of the 
town within the limits of which the territory composing the vil- 
lage was formerly situated. 1 The inhabitants of unincorporated 
plantations of Massachusetts, in 1807, were not included in the 
description, contained in the constitution, of persons qualified to 
give in their votes for governor and lieutenant-governor. 2 Under 
a constitutional provision requiring a residence, in the election 
district, " of ten days, immediately preceding the election," an 
act of the legislature, authorizing voters who had changed their 
residence, within ten days preceding the election, to vote in the 
districts which they had left, was held unconstitutional and void. 3 
An election district, in the sense of a constitutional provision 
prescribing, as one of the qualifications of the elector, a residence 
of ten days immediately preceding the election in the election 
district where he offers to vote, is any part of a city, or county, 
having fixed boundaries, within which all citizens, residents therein, 
are required to vote at the same polling place or places. 4 An 
elector, who removes with his family from one town to another, 
does not retain the right to vote, in the former, during the period 
of time prescribed, by law, for the acquisition of the right to vote 
in the latter. 5 Under a statute prescribing, as one of the quali- 
fications of electors of the most numerous branch of the state 
legislature, a residence of a year in the town where they vote, 
a residence of less than a year in the town will not entitle an 
elector to vote for representative in congress, although he may 
have resided a year in the congressional district. 6 The thirty 
days' residence required to entitle an elector to vote must be 
ascertained by excluding the day of the election.* 7 

§ 57. A statute, restricting the exercise of the elective franchise 
to the district of the elector's residence, 8 is not in conflict with the 
state constitution of Georgia, declaring that " every male citizen 
of the United States (except as hereinafter provided) twenty-one 
years of age, who shall have resided in this state one year next 
preceding the election, and shall have paid all taxes which may 

1 Jones v. Kolb, 56 Wis. 263. 5 McDaniel's case, 3 Penn. L. J. 310-; 

2 Opinion of the Justices, C. S. & J. Thompson v. Ewing, 1 Brewst. 103. 
669. 6 Williams v. Whiting, 11 Mass. 424. 

3 Thompson v. Ewing, 1 Brewst. 103. 7 People v. Holden, 28 Cal. 123. 

4 McDaniel's case, 3 Penn. L. J. 310. * Code Ga. 1882, s. 1455. 



41 

hereafter be required of him, and which he may have had an 
opportunity of paying, agreeably to law, except for the year of 
the election, shall be deemed an elector." 1 A constitutional pro- 
vision of North Carolina that " every male person born in the 
United States, and every male person who has been naturalized, 
twenty-one years old, or upward, who shall have resided in this 
state twelve months next preceding the election, and thirty days 
in the county in which he offers to vote, shall be deemed an 
elector," 2 fixes the qualifications of electors for all elections, 
including state, county, city, town, and township elections, and a 
statute', prescribing a residence of ninety days, as a qualification 
for voting at a municipal election is unconstitutional. 3 

§ 58. A provision, in a village charter, restricting the right to 
vote, at elections of officers of the village, to persons who have re- 
sided therein twenty days next preceding the election, is repugnant 
to a constitution, prescribing the qualifications of voters for village 
officers, and not including, among such qualifications, a residence 
in the village for a definite period of time. 4 The constitution of 
Indiana contained the following section : " In all elections, not 
otherwise provided for by this constitution, every white male 
citizen of the United States, of the age of twenty-one years and 
upwards, who shall have resided in the state during the six months 
immediately preceding such election ; and every white male of 
foreign birth, of the age of tw x enty-one years and upwards, who 
shall have resided in the United States one year, and shall have 
resided in this state during the six months immediately preceding 
such election, and shall have declared his intention to become a 
citizen of the United States, conformably to the laws of the United 
States on the subject of naturalization, shall be entitled to vote in 
the township or precinct where he may reside." 5 Certain statutes 
contained the provisions " that no person shall be deemed to have 
acquired a residence, in any township, city, or ward, so as to 
entitle him to vote therein, until he shall have been a bona fide 
inhabitant of such township, city, or ward, at least twenty days 
before the day of election at which such person shall offer to vote," 
and that a person, whose right to vote is challenged, shall make 

1 Const. Ga. 1877, art. 2, par. 2 ; Dyson 3 People v. Canaday, 73 N. C. 198. 
v. Pope, 71 Ga. 205. "State v. Tuttle, 53 Wis. 45. 

2 Const. N. C. 1868, art. 6, s. 1. 5 Const. Ind. 1851, art. 2, s. 2. 



42 

oath that he has been, " for twenty days last past, a bona fide 
resident of the township, precinct, or ward." 1 It was held, by 
the supreme court of the state, that these statutory provisions 
were unconstitutional and void ; that the constitution only required 
actual residence in the township, or precinct ; and that it was not 
in the power of the legislature to add a requirement that this ac- 
tual residence should also be of a specified duration. 2 

§ 59. Reputation, or common report, is not evidence to prove 
either the former, or the present, residence of a voter. Nor are 
declarations of a voter that he has lived in a particular place, or 
county, evidence of the fact alleged, when a question arises in a 
contest between other parties. But what a voter says, on leaving 
home, or while on a journey, explanatory of the act, or object, of 
leaving home, or performing the journey, is admissible in evidence, 
as a part of the res gestae, whenever the act itself is material 
evidence. 3 The fact of a voter's residence can be proved by 
others than the voter. The evidence of persons who sought, and 
did not find, certain voters, in the precinct, is entitled to very 
little weight. 4 

§ 60. Residence upon an Indian reservation within the limits 
of a state, is not a qualification for the exercise of the elective 
franchise, under the state government, unless made so by the 
constitution or laws of the state. The right of residents of an 
Indian reservation, within the limits of a territory, to vote, at 
territorial elections, depends on the will of congress, expressed 
in the act establishing the reservation, or otherwise. It is quite 
apparent, from the terms of the organic act, that it was not com- 
petent for the authorities of Dakota to hold an election, or exer- 
cise any other jurisdictional act, in any part of the Indian reser- 
vations embraced within the exterior bounds of the territory. 5 
It was provided, by the organic act, that Dakota should not 
include any territory which, by treaty with any Indian tribe, was 
not, without the consent of the tribe, to be included within the 
territorial limits, or jurisdiction, of any state, or territory, but all 
such territory should be excepted out of the boundaries, and form 
no part of the territory of Dakota, until the tribe should signify, 

1 Kev. Stat. Ind. G. & H. 236. 4 Weaver v. Given, 1 Brewst. 140. 

2 Quinn v. State, 35 Ind. 485. 5 Burleigh v. Armstrong, Smith, 89. 

3 Griffin v. Wall, 32 Ala. 149. 



43 

to the president of the United States, their assent to be included 
within the territory. It was held that the territory, excepted from 
the limits of Dakota, by the statute, was that which was set apart 
by treaty with some particular tribe, and so excepted by the 
treaty itself ; that the provision did not apply to all territory 
which Indians might happen to occupy, but only to such portions 
as were held by particular tribes, under and by virtue of treaties 
defining boundaries and stipulating for exclusive jurisdiction to 
be exercised by the tribes holding the same. 1 

§ 61. By the act of congress organizing the territory of Nebraska, 
it was provided that so much thereof as was occupied as an Indian 
reservation should not be considered a part of the territory of 
Nebraska, but should be excluded therefrom, until, by arrange- 
ment between the United States and the Indians, the title of the 
latter should be extinguished. It was held by the committee that, 
inasmuch as no such arrangement had been made, between the 
United States and the Pawnee Indians, as to their reservation, it 
was no part of the territory, and no voting precinct could be legally 
established within its limits, and that all votes, returned from that 
reservation, were to be rejected as illegal. 2 It was held, by the 
majority of the committee, that the settlers on the (i half-breed 
tract," in Richardson county, Nebraska, had a right to vote for 
delegate to congress ; that this tract, which was reserved by the 
Prairie-du-Chien treaty of July 15, 1830, was not embraced in the 
class of Indian reservations excluded from the territorial jurisdic- 
tion of Nebraska by the organic act ; that, inasmuch as the tract 
was situated in the county of Richardson, the settlers had a prima 
facie right to vote in that county ; that the fact that they were 
trespassers on the lands did not affect their right to vote ; and 
that the exclusion of these people from the territorial census, by 
the governor, in no way affected such right. The minority dis- 
sented. The house, on various grounds, overruled the majority, 
by a vote of 63 to 19. 3 

§ 62. No legislative power, except that of congress, can be ex- 
ercised over lands, within a state, purchased by the United States, 
with the consent of the state, for the erection of forts, magazines, 

1 Todd v. Jayne, 1 Bart. 555. 3 Bennett v. Chapman, 1 Bart. 204. 

2 Daily v. Estabrook, 1 Bart. 299 ; Mor- 
ton v. Daily, id. 402. 



44 

arsenals, dock-yards, or other needful buildings. When lands 
are acquired by the United States, within the limits of a state, 
in any other way than by purchase, with the consent of the state, 
if forts, arsenals, or other public buildings, shall be erected on 
them, for the uses of the general government, such buildings, with 
their appurtenances, as instrumentalities for the execution of its 
powers, will be exempt from such jurisdiction of the state as 
would destroy or impair their effective use, for the purposes 
designed. When they are not used, as such instrumentalities, 
the legislative power of the state, over the places acquired, will 
be as full and complete as over any other places within its 
limits. 1 Persons who reside upon land ceded by a state to 
the United States, as the site of an arsenal or navy yard, with- 
out reservation of jurisdiction beyond the right to serve civil and 
criminal process thereon, are not entitled to vote as inhabitants 
of the state. 2 

§ 63. Asylums for disabled volunteer soldiers of the United 
States are among the " needful buildings," for the erection of 
which the government of the United States, through the medium 
of a corporation created by itself, or otherwise, may purchase and 
hold territory under the federal constitution. 3 And upon the 
purchase of territory for that purpose, with " the consent of the 
legislature of the state, in which the same shall be," the govern- 
ment of the United States is invested with " exclusive jurisdiction 
over the same and its appurtenances," in all cases whatsoever ; 
the inmates of such an asylum, being within the exclusive juris- 
diction of a government other than that of the state within whose 
boundaries the asylum is situated, are not residents of the state, 
and, where the state constitution restricts the elective franchise 
to residents of the state, the inmates of such asylum are not 
entitled to vote at any elections held within and under the laws 
of the state. 4 

§ 64. Residence at a military post of the United States, on land 
which was neither reserved for military uses, by the general gov- 
ernment, on the admission of the state to the union, nor ceded by 

1 Kailway Co. v. Lowe, 114 U. S. 525. Taylor v. Heading, 2 Bart. 6G1 ; Opinion 

2 Opinion of Judges, 1 Mete. (Mass.) of Judges, C. S. & J. 416. 
580; Sinks v. Reese, 19 Ohio St. 306; 3 Const. U. S. art. 1, s. 8. 
Commonwealth v. Clary, 8 Mass. 72 ; 4 Sinks v. Reese, 19 Ohio St. 306. 



45 

the state, after its admission, to the United States, does not 
disqualify a person for the exercise of the right of suffrage in 
the state. 1 A constitutional requirement of residence, for a pre- 
scribed period, in the state, county, or town, as a qualification of 
electors, is satisfied by a residence therein, for the prescribed 
period, if the state has jurisdiction over the place of residence 
when the election is held, although it may have been, during a 
part of the period, under the exclusive jurisdiction of the United 
States. 3 

§ 65. The rule which prohibits residents of navy -yards, forts, 
and arsenals, situated within the limits of the states, from voting, 
at state elections, does not apply to military reservations, within 
the territories. Inasmuch as there is no conflict of sovereignty, 
between the government and a territory, and the latter holds all 
its jurisdiction in subordination to the controlling power of con- 
gress, and the military reservations are not permanently severed 
from the body of the public lands, but are simply set apart and 
withheld from private ownership, by an executive order to the 
commissioner of the land office, and may be and often are restored 
to the common stock of the public domain, when the occasion 
for their temporary occupancy has ceased, by legislation, which 
requires no concurrent act of any state authority to give it efficacy, 
the residents upon such reservations, although abiding thereon by 
the mere sufferance of the authorities of the United States, do not, 
in any just sense, cease to be inhabitants, or residents, of the ter- 
ritory, within which such military reservations may be situated. 
There is nothing in the terms of the organic act of the territory 
of Dakota, or in the general policy of the law, forbidding an election 
to be held at such places. 3 

§ 66. There are authorities for the doctrine that, in the absence of 
statutory regulations on the subject, a pauper, abiding in a public 
almshouse, locally situated in a different district from that in 
which he dwelt when he became a pauper, and by which he is 
supported away from his original home, does not thereby change 
his residence, but is held constructively to remain at his old home. 4 

1 State v. Griffey, 5 Neb. 161. "Monroe v. Jackson, C. &. H. 98; 

2 Kenner v. Bennett, 21 Ohio St. 451. Covode v. Foster, 2 Bart. 600; Taylor v. 
3 Burleigh v. Armstrong, Smith, 89. Reading, 2 Bart. 661. 



4:6 

And there are strong reasons for this opinion. The pauper is 
under a species of confinement. He must submit to regulations 
imposed by others, and the place of his abode may be changed 
without his consent. Few of the other elements which ordinarily 
make up a domicile being present, the element of choice also, in his 
case, almost wholly disappears. There are moreover serious reasons 
of expediency against permitting a class of persons, who are neces- 
sarily so dependent upon the will of one public officer, to vote in 
a district in which they have no interest. On the other hand the 
pauper's right to vote is recognized by law. Practically it can 
very seldom be exercised, except in the immediate neighborhood 
of the almshouse. In the case of a person so poor and helpless 
as to expect to be a life-long inmate of the poor-house, it is, in 
every sense in which the word can he used, really and truly his 
residence, and it is important that these constitutional provisions, 
respecting suffrage, should be carried out in their simplest and 
most natural sense, without recourse to artificial or technical con- 
struction. 1 

§ 67. In Illinois the involuntary removal of a pauper, from his 
own town, to the county poor-house situated in a different town, 
does not deprive him of his legal residence, in the town from which 
he is removed. 3 Nor can paupers, by mere abode in the county 
poor-house, acquire such a residence in the precinct, where the 
poor-house is located, as to become legal voters in that precinct. 3 
But an inmate of an infirmary, in Ohio, having his residence, 
when received into the infirmary, in a township other than the one 
in which the infirmary is situated, is not incapacitated from forming 
a purpose, or intent, to change his residence to the latter township, 
and, if he adopt the township in which the infirmary is situated, 
as his place of residence, having no family elsewhere, and also 
possess the other qualifications required by law, he will be entitled 
to vote in such township. 4 

'Cessna v. Myers, Smith, 60; Dale v. forty-fourth congress, expressed the fol- 

Irwin, 78 111. 170. lowing opinion on the question of the 

2 Clark v. Kobinson, 88 111. 498 ; Dale legal residence of paupers : The law of 
v. Irwin, 78 111. 170. Illinois requires the relatives of poor 

3 Clark v. Kobinson, 88 111. 498; Eev. persons to support them, if able to do 
Stat. 111. 1883, c. 46, s. 65a. so, in the following order: First chil- 

4 Sturgeon v. Korte, 34 Ohio St. 525. dren are to support their parents, next 
The committee of elections, in the parents their children, next brothers and 



47 



§ 68. Where the only facts established are that a person, other- 
wise qualified, went into an election district, for the purpose of 
working on a railroad, for an indefinite period, or until it should 
be completed, and voted at an election in the district, it may, or 
may not, be true that his residence was in the district. The bur- 
den is on those who question the legality of his vote to show that 
the election officers erred in receiving it. Where, in addition, it 
appears that such voter had no dwelling-house elsewhere, had his 
family with him, and himself considered the voting place as his 
home until his work on the railroad should be done, his residence 
in the district is affirmatively established. But, on the other hand, 
where it is shown that the voter elected to retain a home, or left 
a family or a dwelling-place elsewhere, or any other similar cir- 
cumstances are shown, his residence in the voting precinct is 
negatived. Where a man, who has no interests or relations in life, 



sisters each other, next grandchildren 
their grandparents, next grandparents 
their grandchildren. It is made the duty 
of the state's attorney, for the county, 
to apply to the court for judgment and 
award of execution, against such rela- 
tives, for the support of their pauper 
kinsmen, the statute recognizing, as 
paupers, all persons unable to support 
themselves. Will it be contended that 
these poor persons, living in the families 
of their relatives, are unable to acquire 
a home, a residence there, because they 
are placed there in obedience to the 
law ? Surely not. If so, we should wit- 
ness the painful spectacle of disabled 
soldiers and some of the most intelligent 
citizens, disfranchised, because of their 
poverty and of their removal from the 
places of their former residence, in order 
to become inmates of the families of 
relatives. This new place of residence 
is as much their poor-house, under the 
law, as is the county building the poor- 
house of those who have no relatives 
obliged by law to support them. If the 
home of a family, in which such a man 
lives, is not his home, he has no home. 
So with the pauper at the poor-house. 
That is his home, — his residence. He 



has no other. It is idle to say that his 
is a restrained residence. It is not. He 
can leave when he pleases. He is there 
for no offence. His only crime is pov- 
erty ; and he is there to receive the 
bounty of the public, because that is 
the most convenient place. It is neces- 
sity that compels him to go there ; but 
it is not the necessity of that duress 
which deprives him of his volition and 
his intent. Unlike the lunatic, the in- 
fant and the femme couverte, he is a free 
agent, to think and act for himself, ex- 
cept as constrained by poverty. The 
citizen, in his little hut, living on one 
meal a day, is restrained by poverty, and 
yet he is a freeman and a voter. That 
necessity, which compelled the poor 
man to go to the poor-house, will com- 
pel him to remain. If there be one class 
whose homes and residences are fixed it 
is this class of our citizens. In the 
opinion of the committee the home of 
these people, their residence, their per- 
manent abiding place, is at the poor- 
house ; and they have a right to vote at 
the precinct in which the poor-house is 
situated (Lemoyne v. Farwell, Smith, 
406). 



48 

which, afford a presumption that his home is elsewhere, comes into 
an election district for the purpose of working on a railroad, for 
a definite or an indefinite period, being without a family, or having 
his family with him, expecting that the question whether he shall 
remain, or go elsewhere, is to depend upon the chances of his ob- 
taining work, having abandoned, both in fact and in intention, all 
former residences, and intending to make that his home while his 
work lasts, such district will become his residence. 1 Whenever 
it appears that a person went into a precinct for the purpose of 
working on a railroad, that he resided in a temporary habitation, 
and was generally regarded as a temporary inhabitant, and that 
he actually left very soon after the election, his vote should be 
rejected. 3 

§ 69. The fact that a citizen went to the place, where he claims 
a residence, for the sole purpose of pursuing his studies at a 
school or college located there, and has no intention to remain 
there, after his studies terminate, is not necessarily inconsistent 
either with a legal residence, or with a want of legal residence at 
that place. The question of residence is to be determined by all 
the circumstances of each case. Among such circumstances, the 
intent of the party, the existence, or absence, of other ties, or 
interests, elsewhere, the dwelling-place of the parents, or, in the 
case of an orphan, just of age, of near friends, with whom he had 
been accustomed to make his home in his minority, would of 
course be of the highest importance. 3 Proof that voters were 
students at a university in the district raises no presumption that 
they were not legal voters in the district. 4 The undergraduates 
of a college, or other literary institution, residing in the town 
where the same is established, for the purpose merely of pursuing 
their studies, and with the intention of returning to their homes, 
whenever their connection with such institution shall terminate, 
do not, by their mere residence in the town, become legally quali- 
fied voters therein. 5 The fact that college students perform labor, 
on the highway, under statutes which make inhabitancy, but not 
residence, the condition of liability for the performance of such 
labor, has no weight in determining the question of their resi- 

1 Cessna v. Myers, Smith, 60. 4 Duffy v. Mason, 1 Ells. 361. 

2 Barnes v. Adams, 2 Bart. 760. r> Report of Committee, C. S. & J. 

3 Cessna v. Myers, Smith, 60. 436. 



49 

clence. 1 The mere fact that a student, who has a domicile in one 
town, resides at a public institution in another town, for the sole 
purpose of obtaining an education, receiving his means of sup- 
port from the former, does not constitute proof of his right to 
vote, in the latter town. He obtains this right only by a change 
of domicile, and the question whether he has changed his domi- 
cile is to be decided by all the circumstances of the case. 2 . 

§ 70. Under a constitution declaring that " the residence of a 
student, at any seminary of learning, shall not entitle him to the 
right of suffrage, in the town where such seminary is situated," 
while such residence will not entitle him to the right, it will not 
prevent its acquisition. Personal presence and an intention on 
the part of the student, to remain while, and for the purpose of, 
pursuing his studies, do not confer domicile ; the intention must 
be to remain for an indefinite period, regardless of the duration 
of the academic course. The presumption is against his right 
to vote in the town, where he resides, as a student, if he left 
another town to enter the school or college. 3 A statute declaring 
that, " a permanent abode is necessary to constitute a residence," 4 
does not require an abode which the person does not intend to 
abandon, at any future time, but only a domicile, or home, which 
the party has no present intention of leaving. The undergradu- 
ates of a college, who are free from parental control, and regard 
the place, where the college is situated, as their home, having no 
other to which to return, are as much entitled to vote as any other 
residents of the town pursuing their usual vocation. It is, for the 
time being, the permanent abode of such students, in the sense 
of the statute. 5 Students of Princeton college and theological 
seminary, having left their last residence, animo non revertendi, 
and having adopted Princeton, as their residence, for a space of 
time " not very brief," but uncertain of duration, undetermined in 
their minds as to the adoption of any other residence, in the event 
of their leaving that place, were held to be residents, within the 
meaning of the constitution of New Jersey. Their votes having 
been decisive of the election of the sitting member, the house 

1 Dale v. Irwin, 78 111. 170. 3 Sanders v. Uetchell, 76 Me. 158; 

2 Opinion of the Justices, C. S. & J. Letcher v. Moore, C. & H. 715. 
510. 4 Bev. Stat. 111. 1874, 46, s. 66. 

5 Dale v. Irwin, 78 111. 170. 



50 

sustained the committee, excluding the contestant, by a vote of 
119 to 66, and confirming the title of the sitting member, by the 
casting vote of the speaker. 1 

§ 71. Enlistment and service, in the army of the United States, 
do not disqualify an elector for voting at the place of his legal 
residence ; but he cannot, by service at a military post, acquire 
the residence prescribed by law as one of the qualifications of an 
elector. 2 The time spent in the army, by soldiers discharged before 
the election, did not constitute any part of the year's residence 
prescribed for voters in the territory of Michigan, by the act of 
congress approved February 16, 1819. 3 A constitutional pro- 
vision that "no person shall be deemed to have gained, or lost, 
a residence, by reason of his presence, or absence, while employed 
in the service of the United States," does not prevent a person 
who removes to a county, while in the service of the United 
States, from acquiring a residence in that county, while in such 
service, if it is his intention so to do. 4 A white male person, 
twenty-one years of age, or upwards, being a citizen of the United 
States, or having declared his intention to become such, as 
required by law, who has resided in Kansas six months next pre- 
ceding any election, and in the township, or ward, in which he 
offers to vote, at least thirty days immediately preceding such 
election, is a legal voter in Kansas, notwithstanding he may be an 
officer, or soldier, in the army of the United States ; but he can- 
not gain a residence, qualifying him to vote, by reason of his 
presence while employed in the service of the United States. 5 
Although residence cannot be gained, or lost, by reason of the 
presence, or absence, of a person, while employed in the military 
service of the United States, such person may change his residence 
when so employed. 6 No officer, soldier, seaman, mariner, or 
other person in the army, or navy, or attached to troops in the 
service of the United States, shall be allowed to vote in any ter- 
ritory, by reason of being on service therein, unless such territory 
is, and has been, for the period of six months, his permanent 
domicile. 7 

'Farlee v. Runk, 1 Bart. 87. 3 Biddle v. Wing, C. & H. 504. 

2 People v. Riley, 15 Cal. 48 ; Hunt v. 4 People v. Holden, 28 Cal. 123. 

Richards, 4 Kan. 549 ; Wigginton v. 5 Hunt v. Richards, 4 Kan. 549. 

Pacheco, 1 Ells. 5 ; Covode v. Foster, 2 6 Darragh v. Bird, 3 Oregon, 229. 

Bart. 600 ; Devlin v. Anderson, 38 Cal. 92. 7 Rev. Stat. U. S. s. 1860. 



51 

§ 72. The constitution of the state of Pennsylvania contained 
the following provision : "In elections by the citizens, every 
white freeman, of the age of twenty-one years, having resided in 
the state one year, and in the election district, where he offers to 
vote, ten days immediately preceding such election, and, within 
two years, paid a state, or county, tax, which shall have been 
assessed at least ten days before the election, shall enjoy the rights 
of an elector." 1 The statute contained this provision : " Wherever 
any of the citizens of this commonwealth, qualified as hereinbefore 
provided, shall be in any actual military service, in any detach- 
ment of militia, or corps of volunteers, under a requisition from 
the president of the United States, or by the authority of this 
commonwealth, on the day of the general election, such citizens 
may exercise the right of suffrage, at such place as may be ap- 
pointed by the commanding officer of the troop, or company, to 
which they shall respectively belong, as fully as if they were 
present at the usual place of election : Provided, That no member 
of any such troop, or company, shall be permitted to vote at the 
place so appointed, if, at the time of such election, he shall be 
within ten miles of the place at which he would be entitled to 
vote, if not in the service aforesaid." 3 The supreme court of the 
state of Pennsylvania held that this statute was in conflict with 
the constitution ; that to " offer to vote," in the sense of the con- 
stitution, was to appear in person, with the proper qualifications, 
at the time and place appointed, and make manual delivery of the 
ballot to the officers designated by law to receive it ; that a ballot 
could not be transmitted by mail, or express, or cast outside of, 
and certified into, the county, where the elector had his domicile. 
The right of the soldier to vote is confined to the election district 
where he resided at the time of his entering the military service. 3 
Election districts, in Pennsylvania, are civil subdivisions, and can- 
not be created or changed by military authority. 4 

§ 73. The constitution of California contained the following 
provision : " Every white male citizen * who shall have been 
a resident of the state six months next preceding the election, 
and of the county, or district, in which he claims his vote, 
thirty days, shall be entitled to vote at all elections, which are 

1 Const. Perm. 1838, art. 3, s. 1. 3 Chase v. Miller, 41 Penn. St. 403. 

2 Purd. 289. 4 Ib. 



52 

now, or hereafter may be, authorized by law." 1 The supreme 
court of California held that this clause of the constitution pre- 
scribed the place, at which the act of voting was to be performed 
in the county, or district, of which the elector had been a legal 
resident for not less than thirty days prior to the day of election ; 
and that an act, 2 which provided for taking the votes of electors 
of California engaged in the military service of the United States, 
at places outside of the counties of their legal residence, was in 
conflict with the constitution. 3 A statute authorizing electors, 
engaged in the military service of the United States, to vote else- 
where than in the towns of their residence, is in conflict with a 
constitution which requires elections to be held " at the meetings 
of the electors in the respective towns." 4 Where a valid provision 
of a state constitution requires the elector to vote at the place of 
his residence, the legislature cannot empower him to vote, in camp, 
or in the field, beyond the limits of the state of his residence. 5 A 
provision of state law authorizing volunteer soldiers to vote for 
representatives in congress, at their stations, bey'ond the limits of 
the state, is a regulation of the place of choosing representatives, 
and not a prescription of the qualifications of voters. 6 Under 
statutes restricting the right to vote, at certain municipal elections, 
to persons who have been " inhabitants of the borough, for six 
calendar months," freemen of the borough, who, being substitutes 
in the militia, are quartered elsewhere, but have dwellings in the 
borough, in which their families reside, and to which they resort, 
at times, on furlough, are legally qualified voters. 7 

§ 74. The constitution of Iowa contained the following provi- 
sion : " Every white male citizen of the United States, of the age 
of twenty-one years, who shall have been a resident of the state 
six months next preceding the election, and of the county in which 
he claims his vote sixty days, shall be entitled to vote at all elec- 
tions which are now, or may be, authorized by law." 8 An act of the 
legislature contained the following section : " At the elections herein 

1 Const. Cal. art. 2, s. 1. McBride, 15 Ohio St. 573 ; Morrison v. 

2 Stat. Cal. 1864, p. 434. Springer, 15 Iowa, 304 ; Bourland v. 
3 Bourland i. Hildreth, 26 Cal. 161. Hildreth, 26 Cal. 161. 

4 Const. Conn. art. 4, s. 2 ; Opinion of "Baldwin v. Trowbridge, 2 Bart. 46. 

the Judges, 30 Conn. 591. 7 Bex v. Hawkins, 10 East. 211. 

f) Chandlers. Main, 16 Wis. 343 ; Chase s Const. Iowa, 1857, art. 2, s. 1. 
v. Miller, 41 Penn. St. 403 ; Lehman v. 



53 

provided for, a poll shall be opened, at every place, whether within, 
or without, the state, where a regiment, battalion, battery, or com- 
pany of Iowa soldiers may be found, or stationed, and, at such 
election, all persons may vote who are thereunto entitled by law 
and by the provisions of this act." 1 It was held, by the supreme 
court of the state, that the foregoing constitutional provision pre- 
scribed qualifications of electors, but did not fix the place, or mode, 
of exercising the elective franchise, and that the statute was not in 
conflict with the constitution. Having referred to the decisions 
in Connecticut, New Hampshire, and Pennsylvania, excluding sol- 
diers' votes, under different constitutional provisions, and to the 
decision in Wisconsin, 2 in which the constitutionality of military 
elections had been upheld, the court said : "We cannot, with con- 
clusive satisfaction, place our finger upon the language of the 
constitution which is clearly and palpably violated, and, though 
we might not be satisfied of its constitutionality, yet if not satisfied 
of its unconstitutionality, it is our duty to uphold the law." 3 

] Laws Iowa, 1862, Extra Sess. 29. 3 Morrison v. Springer, 15 Iowa, 304. 

2 Chandler v. Main, 16 Wis., 343. 



CHAPTER IV. 



QUALIFICATIONS OF VOTERS; MISCELLANEOUS. 

Secs. Secs. 



1. Age . . . . . . 75 

2. Eace 76-80 

3. Sex 81,82 

4. Property .... 83-85 



5. Payment of tax . . 86-92 

6. Housekeepers and heads of fam- 

ilies . . . ' . .93 

7. Test oath 94 



§ 75. The age of twenty-one years, at which the common law 
permits males and females to dispose of themselves and their 
property, is, in the absence of constitutional, or statutory, pro- 
visions to the contrary, the age at which the voter, in the United 
States and England, is first permitted to exercise the right of suf- 
frage. Under a statute declaring that " no such person shall be 
so registered, in any year, unless he shall have occupied such 
premises, as aforesaid, for twelve calendar months next previous 
to the last day of July in such year," 1 it is not necessary that the 
claimant should have been of full age during all the twelve months 
of occupation ; it is sufficient that he is so at the time of the re- 
vision of the lists. 2 To entitle a voter to be registered, in respect 
of the <£12 occupation franchise, under the " Representation, of 
the People Act," of 1867, 3 he must have been of full age on the 
last day of July of the qualifying year. 4 

§ 76. The original constitution of the United States, which left 
with the states the power to prescribe the qualifications of voters, 
contained neither an express restriction of the elective franchise 
to the white race, nor an inhibition of such restriction by the 
states. But the spirit of its provisions, on the subject of slavery, 
was in harmony with the denial of the right of suffrage to the 
colored race, by the colonial charters and the constitutions of the 
several states, and before the adoption of the recent amendments 
of the constitution of the United States, the elective franchise was, 
as a rule, restricted to the white race. 

: 2 W. 4, c. 45, s. 27. 4 Hargreaves V. Hopper, 1 L. R. C. P. 

2 Powell v. Bradley, Hop. & Phil. 149. Div. 195. 

3 30 & 31 Vict. c. 102, s. 6. 

54 



55 

§ 77. The thirteenth article of the amendments of the constitu- 
tion of the United States did not confer the elective franchise upon 
the colored race. The following are its provisions : " Section 1. 
Neither slavery, nor involuntary servitude, except as a punishment 
for crime, whereof the party shall have been duly convicted, shall 
exist, within the United States, or any place subject to their juris- 
diction." It was an obvious construction of this article that, 
inasmuch as freedom was not, in itself, a complete qualification 
for the exercise of the right of suffrage, in any of the states, this 
amendatory article did not secure the elective franchise to the 
colored race. 

§ 78. The fourteenth article of the amendments of the constitu- 
tion contains the following provisions : 

" Section 1. All persons born, or naturalized, in the United 
States, and subject to the jurisdiction thereof, are citizens of the 
United States, and of the state wherein they reside. No state 
shall make, or enforce, any law which shall abridge the privileges 
or immunities of citizens of the United States ; nor shall any state 
deprive any person of life, liberty, or property, without due process 
of law ; nor deny to any person, within its jurisdiction, the equal 
protection of the laws. 

" Section 2. Representatives shall be apportioned among the 
several states according to their respective numbers, counting the 
whole number of persons in each state, excluding Indians not 
taxed. But when the right to vote, at any election for the choice 
of electors for president and vice-president of the United States, 
representatives in congress, the executive and judicial officers of 
a state, or the members of the legislature thereof, is denied to any 
of the male inhabitants of such state, being of twenty-one years of 
age, and citizens of the United States, or, in any way, abridged, 
except for participation in rebellion, or other crime, the basis of 
representation therein shall be reduced in the proportion which 
the number of such male citizens shall bear to the whole number 
of male citizens twenty-one years of age, in that state." 

Inasmuch as the elective franchise was not a right, privilege, or 
immunity, incident to citizenship, the first section of this article was 
not effective to secure the right of suffrage to the colored race. 
The second section imposed a penalty upon the states for with- 
holding the right of suffrage from the colored race, but did not 



56 



absolutely confer that right, nor prohibit the denial thereof by the 
states. 

§ 79. The following is the text of the fifteenth article of the 
amendments of the constitution : 

" Section 1. The right of citizens of the United States to vote 
shall not be denied, or abridged, by the United States, or by any 
state, on account of race, color, or previous condition of servitude. 

" Section 2. The congress shall have power to enforce this arti- 
cle, by appropriate legislation." 

The effect of this amendment is to guaranty the right of suffrage 
to the colored race, in every state, on the same terms and condi- 
tions on which it shall be enjoyed by the white race. It imposes 
but a single restriction upon the exclusive power of the states to 
prescribe the qualifications of voters, namely, that all qualifica- 
tions shall be the same for the white and the colored races. The 
legislative provisions enacted by congress, for the enforcement of 
this article, include sections 2003, 2004, 2005, 2007, and 2010 of 
the revised statutes. 1 



1 Section 2003. No officer of the army, 
or navy, of the United States, shall pre- 
scribe, or fix, or attempt to prescribe, or 
fix, by proclamation, order, or otherwise, 
the qualifications of voters, in any state, 
or in any manner interfere with the free- 
dom of any election, in any state, or with 
the exercise of the free right of suffrage , 
in any state. 

Section 2004. All citizens of the United 
States, who are otherwise qualified, by 
law, to vote, at any election, by the 
people, in any state, territory, district, 
county, city, parish, township, school- 
district, municipality, or other territo- 
rial subdivision, shall be entitled and 
allowed to vote at all such elections, 
without distinction of race, color, or 
previous condition of servitude ; any 
constitution, law, custom, usage, or reg- 
ulation, of any state or territory, or by 
or under its authority, to the contrary 
notwithstanding . 

Section 2005. When, under the author- 
ity of the constitution, or laws, of any 
state, or the laws of any territory, any 



act is required to be done, as a prerequi- 
site, or qualification, for voting, and, by 
such constitutions, or laws, persons, or 
officers, are charged with the duty of 
furnishing *to citizens an opportunity to 
perform such prerequisite, or to become 
qualified to vote, every such person and 
officer shall give to all citizens of the 
United States the same and equal oppor- 
tunity to perform such prerequisite, and 
to become qualified to vote. 

Section 2007; Whenever, under the 
authority of the constitution, or laws, of 
any state, or the laws of any territory, 
any act is required to be done, by a citi- 
zen, as a prerequisite to qualify, or enti- 
tle, him to vote, the offer of such citizen 
to perform the act required to be done 
shall, if it fail to be carried into execu- 
tion by reason of the wrongful act or 
omission of the person, or officer, charged 
with the duty of receiving, or permit- 
ting, such performance, or offer to per- 
form, or acting thereon, be deemed and 
held as a performance, in law, of such 
act ; and the person so offering and fail- 



57 

The constitutional authority for the enactment of most of the 
provisions of sections 2007 and 2010 is to be found in the fif- 
teenth amendment of the constitution of the United States ; but 
this legislation is authorized, in part, by that clause of the consti- 
tution which empowers congress to regulate the times, places, and 
manner of holding elections of representatives in the several states. 
It is provided in section 2007 that the offer to perform any act 
required by state laws, or constitutions, to qualify, or entitle, the 
citizen to vote, shall be, in law, the performance of such act. So 
far as the election of representatives in congress is concerned, this 
provision is of constitutional validity in its application to all per- 
sons, in all cases ; for congress has the right to regulate the man- 
ner of choosing representatives, as well by provisions which have 
no relation to the fifteenth amendment, as by provisions which 
tend to enforce that amendment. And as to elections of state offi- 
cers, the provision is of constitutional validity in all cases involv- 
ing the enforcement of the fifteenth amendment. But, in the 
election of state officers, it is of no validity whatever in cases not 
involving the enforcement of this constitutional amendment. That 
is to say, so far as congressional elections are concerned, the offer, 
by a legal voter, to perform any act which is a prerequisite to 
voting, will be, in law, a performance of such act. This rests on 
the constitutional provision authorizing congress to regulate con- 
ing to vote, and being otherwise quali- and in cases where it appears that the 
fied, shall be entitled to vote, in the sole question, touching the title to such 
same manner and to the same extent as office, arises out of the denial of the 
if he had, in fact, performed such act. right to vote to citizens, who so offered 

Section 2010. Whenever any person is to vote, on account of race, color, or 
defeated, or deprived, of his election to previous condition of servitude, such 
any office, except elector of president or suit, or proceeding, may be instituted 
vice-president, representative or dele- in the circuit, or district, court of the 
gate in congress, or a member of a state United States of the circuit, or district, 
legislature, by reason of the denial to in which such person resides. And the 
any citizen, who may offer to vote, of circuit, or district, court shall have, con- 
the right to vote, on account of race, currently with the state courts, jurisdic- 
color, or previous condition of servitude, tion thereof, so far as to determine the 
his right to hold and enjoy such office, rights of the parties to such office by 
and the emoluments thereof, shall not reason of the denial of the right guar- 
be impaired by such denial; and the antied by the fifteenth article of the 
person so defeated, or deprived, may amendments to the constitution of the 
bring any appropriate suit, or proceed- United States and secured herein, 
ing, to recover possession of such office ; 



58 

gressional elections. At elections of state officers the offer to per- 
form any such act, by a person who is, at such elections, denied 
the right to perform such act, on account of race, color, or previous 
condition of servitude, will be, in law, a performance of the act. 
This is authorized by the fifteenth amendment. But, at elections 
of state officers, an offer to perform such act, by persons not denied 
the right to perform it on account of race, color, or previous condi- 
tion of servitude, is not, by virtue of this statute, made in law tanta- 
mount to a performance of such act, for the reason that no such 
legislation is warranted by any provision of the national constitu- 
tion. As we have seen, the supreme court of the United States has 
decided that these sections are not, in their full scope, authorized 
by the fifteenth amendment. 1 

§ 80. Under the first section, of the fifth article of the constitu- 
tion of the state of Ohio, adopted in 1851, in which it is provided 
that " every white male citizen of the United States, of the age 
of twenty-one years, who shall have been a resident of the state 
for one year next preceding the election, and of the county, town- 
ship, or ward, in which he resides, such time as may be provided by 
law, shall have the qualifications of an elector and be entitled to 
vote at all elections," it was held that every male person, having 
more blood of the white race than of the black, and possessing 
the other qualifications prescribed by the statute, was a qualified 
elector. 3 Before the adoption of the recent amendments of the 
federal constitution, it was held by the supreme court of Indiana 
that a free man of color, born within the United States, was a 
citizen of the United States, and, as such, was entitled to become 
a citizen of any one of the several states, by becoming a resident 
thereof ; but the right to vote and the legal capacity to hold office 
were not essential to the character of a citizen. 3 A free colored 
person, born in the state of Connecticut, was held to be a citizen 
of that state and of the United States, within the meaning of the 
amendment of the constitution of that state, which declares that 
" every white male citizen of the United States, who shall have at- 
tained the age of twenty-one years, who shall have resided in this 
state for a term of one year next preceding, and in the town, in 
which he may offer himself to be admitted to the privileges of an 

1 United States v. Keese, 92 U. S. 214. 3 Smith v. Moody, 26 Ind. 299. 

2 Anderson v. Milliken, 9 Ohio St. 568. 



59 

elector, at least six months preceding the time he may offer himself, 
and shall sustain a good moral character, shall, on his taking such 
oath as may be prescribed by law, be an elector." 1 

§ 81. In England women are subject to legal incapacity to vote 
at an election, either for a borough, or for a county, though pos- 
sessed of the proper qualification, 2 and cannot appeal from the 
decision of a revising barrister. 3 Under a statute, conferring the 
right to vote, for town commissioners, upon " every person of full 
age, who is the immediate lessor of lands, tenements, and heredit- 
aments, within such town," * * and upon " every person, of 
full age, who shall have occupied, as tenant, or owner, or joint 
occupier, or shall have been the immediate lessee of any lands, 
tenements, or hereditaments, within such town," 4 it was held, by 
the court of queen's bench, in Ireland, all the judges concurring, 
that women, of full age, were entitled to vote. 5 But, on appeal 
to the court of exchequer chamber, the judgment of the queen's 
bench was reversed, by a divided court, three of the seven judges 
dissenting, and a fourth declaring that he had changed his opinion 
more than once, during the argument of the case, and afterwards, 
and that he still considered it to be one of extreme difficulty. 6 The 
right of suffrage is not secured to women by the constitution of 
the United States. The states have as a rule withheld from them 
this right. Whether it is, or is not, true that the best results, for 
the whole state, would be attained, by restricting exclusions from 
the right of suffrage to those members of the state who represent 
its ignorance and vice, the fact is, as it always has been, that 
although half of the virtue and intelligence of the state is to be 
found in its female members, that half is wholly disfranchised, and 
yet, at the same time, the most ignorant and vicious male citizens 
enjoy the right of suffrage. 7 

§ 82. A statutory provision which requires all male voters to be 
tax-payers but does not require female voters to be tax-payers is 

1 Amend. Const. Conn. art. 8 ; Opinion 7 In future ages students of history 
of the Judges, 32 Conn. 565. will learn, with amazement, that, in the 

2 Chorlton v. Lings, 1 Hopw. & C. 1. great republic of the nineteenth century, 

3 Wilson v. Salford, 1 Hopw. & C. 44. . the right of suffrage was freely granted 
4 17 and 18 Vict. c. 103, s. 22. to the vilest wretches of the male sex, 

5 Eegina v. Crosthwaite, 17 Jr. Law but was withheld from all women, how- 
Rep. N. S. 157. ever exalted in character and intellect. 

6 S. C. id. 463. 



60 

void because not uniform or impartial. * A question arose, in the 
state of Kansas, as to the constitutionality of a statute authorizing 
women to vote for school district trustees. The constitutional 
provision was the following : " Every white male citizen of twenty- 
one years and upwards, belonging to either of the following classes, 
who shall have resided in Kansas six months next preceding any 
election, and in the township or ward, in which he offers to vote, 
at least thirty days next preceding such election, shall be deemed 
a qualified elector." 2 The statute conferred the right to vote for 
school-district officers upon, " all white female persons over the 
age of twenty-one years, not subject to the disqualifications named 
in section second, article fifth, of the constitution of the state, and 
who shall be residents of the district at the time of offering to 
vote." 3 The supreme court of the state held that inasmuch as the 
constitution provided, not for school-district elections, but only 
for general and township elections, and, while recognizing elec- 
tions of many officers, contained no reference to elections of 
school-district officers, and did not require all officers to be elected 
by the electors designated in the foregoing constitutional provision, 
or even to be elected at all, the legislature would have full power 
to regulate the time, place, and manner of choosing school-district 
officers, and of prescribing the qualifications of voters for those 
officers, even if the foregoing constitutional provision were in 
terms applicable to school-district elections ; but that this pro- 
vision was not applicable to such elections, because, if applied to 
them, it would secure to every elector who resided in the town- 
ship the right to vote, not only in the particular school district in 
which he resided, but also in all the other school districts of the 
township. 4 

§ 83. A freehold qualification for the exercise of the elective 
franchise may be prescribed in a state constitution. 5 Where the 
land of the elector, upon which he claims the right to vote, lies 
in a different county, or where the other required qualifications 
are in a different county, from that in which the elector offers his 
vote, such vote ought to be rejected, when the state constitution 
gives the right only in the county " wherein such land shall lie, 

1 Lyman v. Martin, 2 tltah, 136. 4 Wheeler v. Brady, 15 Kan. 26. 

2 Const. Kan., art. 5, s. 1. 5 Kelley v. Harris, C. & H. 260. 

3 Gen. Stat. Kan. 919, s. 20. 



61 

or such house-keeper and head of the family shall live." 1 A per- 
son possessed of a mere equitable interest in lands, or holding a 
bond for a deed, is not to be deemed " possessed of an estate of 
freehold in land, so as to be entitled to vote in Virginia." 2 Under 
the statute of that state, the votes of freeholders, residing out of, 
the district, but having competent estate and possessions within it, 
were legal. All votes, not given in the county where the land, 
upon which they were respectively based, was situated, were illegal 
And all votes given by virtue of title bonds, not conveying a legal 
freehold estate, were illegal. 3 A statute of Connecticut contained 
the following provision : " No person shall presume to vote, in any 
society meeting aforesaid, unless such person hath a freehold, in 
the same town, or society, rated at nine dollars, or one hundred and 
thirty-four dollars in the common list." 4 In a criminal case the 
supreme court of the state held as follows : " The qualification 
required by statute is the having a freehold actually rated in the 
common list at nine dollars, and the having such estate ratable 
at that sum is not sufficient." 5 Under the constitution of Rhode 
Island, 6 a husband, otherwise qualified, may vote, by virtue 
of his interest in the realty of his wife, provided such realty is a 
freehold estate of. the value prescribed in the constitution, in the 
following cases : 1. If the husband has a tenancy by the curtesy 
initiate ; 2. In the absence of a tenancy by the curtesy initiate, if 
the marriage and the acquisition of the realty both occurred 
before the enactment of the law establishing the husband's 
marital estate in his wife's realty. 7 An election, to the house of 
representatives of Massachusetts, was declared void, on the ground 
that the property qualifications of certain persons, who voted for 
the member elect, were false and fraudulent. 8 

§ 84. Since 1868 every man in England, of full age, not subject 
to legal incapacity, seized, at law or in equity, of lands, or tenements, 
of the clear yearly value of £5, or entitled, as lessee, or assignee, 
to any lands or tenements, for the unexpired residue of a term of 
not less than sixty years, of the clear annual value of <£5, has been 

1 Draper v. Johnson, C. & H. 702. - 6 Const. K. I. art. 2, s. 1 ; Gen. Stat. 

2 lb. R. I. c. 152. s. 1. 

3 Porterfield v. McCoy, C. & H. 267. 7 Opinion of the Judges, 12 R. I. 586. 

4 Stat. Conn. 1796, p. 403. 8 Batcheller's case, C. S. & J. 137. 

5 State v. Woodruff, 2 Day, 504. 



62 

entitled to be registered, and, when registered, to vote for member 
of parliament for a county. x All conveyances fraudulently made, 
subject to conditions, for the purpose of qualifying any person to 
vote, will be discharged of such conditions ; and all bonds, con- 
tracts, securities, or agreements, for defeating such estate, will be 
void ; and persons making such conveyances, or voting by color 
thereof, will, for every such offence, forfeit £40. 2 Under 7 & 8 
W. 3, c. 25, and 10 Anne, c. 23, a fraudulent conveyance, executed 
for the mere purpose of conferring a vote, is void only to the 
extent of preventing the acquisition of the right to vote ; it is valid 
and effectual, as between the parties, to pass the interest. 3 The 
question whether the circumstances, attending a conveyance, 
amount to fraud, or not, is a question of fact, for the revising bar- 
rister to determine, and is not one which the court can entertain 
upon appeal. 4 Where the effect of the purchase of a church pew 
is only to acquire a right to sit in the pew, during divine service, 
it does not create a freehold tenement, or confer a right to vote, 
although rented, by the purchaser, for more than 40s. per annum. 5 
The incumbent of a vicarage, whether a perpetual curate, or not, 
has a sufficient equitable freehold interest in land conveyed, in 
exchange, to his predecessor, " and his successors, vicars of the 
vicarage for the time being, forever," to entitle him to vote for 
the county. 6 The words "actual possession," in 2 W. 4, c. 45, 
s. 26, mean a possession in fact, as contradistinguished from a 
possession in law. 7 

§ 85. Where the state constitution prescribed, as a qualification 
for the voter, that he should have an estate of sixty pounds, it was 
held that the voter was not required to possess an estate of that 
amount over and above all debts due from him. 8 A person who 
had, in good faith, received, on the morning of the day of the 
election, the sum of two hundred dollars, in advance of his yearly 
salary, possessed an estate of the value of sixty pounds, within 
the meaning of the constitution of the state of Massachusetts, and 
was therefore a qualified voter. 9 The committee of elections of 

1 30 and 31 Vict. c. 102, s. 5 ; 2 W. 4, 5 Hinde v. Charlton, 2 L. R. C. P. 104. 

c. 45, ss. 18-26. 6 Wallis v. Birks, 5 L. R. C. P. 222. 

2 10 Anne, c. 23, s. 1 ; 13 Geo. 3, c. 20. 7 Murray v. Thornley, 2 C. B. 217. 

3 Phillpots v. Phillpots, 10 C. B. 85. 8 Bridge v. Lincoln, 14 Mass. 367. 

4 Newton v. Mobberly, 2 C. B. 203. a lb. 



63 

the house of representatives of the United States held that the 
land list of the preceding year was, prima facie, but not conclusive, 
evidence to show who were qualified to vote at an election in Vir- 
ginia ; that affidavits and testimony were admissible to overcome 
such evidence ; that, under the statute of Yirginia, it was not 
necessary that a voter should have held a freehold title to his 
land for six months preceding the election, but it was sufficient if 
he had held possession six months and actually acquired his free- 
hold title before the election. And they reported that the contestant 
had "not supported his petition." The house recommitted the 
report, but finally confirmed the title of the sitting member to the 
seat. 1 

§ 86. A constitutional provision, vesting the right to vote in 
every male citizen, otherwise qualified, who shall have paid any 
state, or county, tax, which shall have been assessed upon him, 
within two years next preceding the election, does not authorize 
the assessors, after a general assessment has been made and com- 
mitted to the proper officer for collection, and before another tax 
is committed to them for assessment, to assess a tax of any kind 
on an elector, for the purpose of enabling him to vote ; nor does 
it permit a person so assessed to vote. 2 A statute providing that 
voters at municipal elections shall pay their taxes, before they 
vote, is not in violation of the constitution of Kentucky. 3 It is 
not the mere payment of money that qualifies a man to become a 
voter ; the money must be paid for the discharge of a tax actually 
assessed upon him, whether legally or illegally. He cannot make 
himself a legal voter, by giving money to the person who paid the 
tax, and to whom it belonged to pay it, for the purpose of obtain- 
ing the collector's receipt, and thus enabling himself to furnish to 
the selectmen apparent evidence of having paid the tax himself. 
When the payment of a state, or county, tax, within two years 
next preceding the election, is, by the state constitution, made a 
condition of the exercise of the right of suffrage, the illegality of 
the assessment of a tax so paid will not deprive the elector of tfee 
right to vote. The object of a statute requiring the voter to have 
paid a tax, " by himself or his parent, master, or guardian," within 
a specified period of time before the election, is to secure the 

1 Taliaferro v. Hungerford, 0. & H. 2 Opinion of Judges, 18 Pick. 575. 

250. 3 Buckner v. Gordon, 81 Ky. 665. 



64 

payment of the tax ; and if payment is made on behalf of a per- 
son, and he recognizes the obligation or liability to pay, it is 
equivalent, in law, to the payment by himself, as the officers, who 
collect the taxes, are not called upon to trace the sources from 
which the money comes. 1 The constitution of Virginia gave the 
right to vote to those who, for twelve months, had been house- 
keepers and heads of families, who should have been assessed 
with a* part of the revenue of the commonwealth within the pre- 
ceding year and actually paid the same. Under this provision a 
majority of the committee held that, when taxable property was 
owned and possessed by the son, and was assessed in the name of 
the father, but the tax was actually paid by the son, the latter, if he 
had all the other requisite qualifications, was entitled to vote ; but 
that, if the property was both assessed to and paid by the father, 
the vote was to be rejected. And where a revenue tax was duly 
assessed, and the sheriff had paid the tax himself, and had not 
returned the party delinquent, as he had a right to do, if he was 
insolvent, or the sheriff was not able to collect the tax, this was 
to be deemed a payment by the party, so as to entitle him to vote. 2 
§ 87. Persons not embraced in tax lists are not entitled to vote 
in Pennsylvania. 3 Under the provincial law of July 2, 1776, and 
the statute of June, 1820, only " bona fide taxable citizens," other- 
wise duly qualified, were entitled to vote in New Jersey. 4 The 
requirement, by the Michigan territorial law, of the payment of a 
county, or territorial, tax, as a qualification of the elector, was not 
satisfied by the voluntary performance of labor, without legal 
requisition, upon a road, which had neVer been regularly estab- 
lished, the tax being payable in money, not in work. 5 ' A con- 
stitutional requirement of the payment of a tax, assessed at least 
six months before the election, as a qualification for voting, is 
satisfied by the payment of a tax so assessed upon the person, or 
property, of the elector, but not by the payment of a tax so as- 
sessed merely on the county of the elector's residence. Under a 
constitutional provision that " every freeman, of the age of twenty- 
one years, having resided in the state two years next before the 
election, and, within that time, paid a state or county tax, which 

1 Humphrey v. Kingman, 5 Mete. 3 Kichards' case, C. & H. 99. 

(Mass.) 162. 4 New Jersey cases, 1 Bart. 22. 

2 Draper v. Johnson, 0. & H. 702. r, Biddie v. Kichard, C. & H. 504. 



65 

shall have been assessed at least six months before the election," 
in order to entitle a citizen, otherwise qualified, to vote for electors 
of president and vice-president of the United States, it is necessary 
that he should, within two years next preceding the election, have 
paid a state, or county, tax assessed upon him individually, at 
least six months before the election. The assessment and pay- 
ment, less than six months before the election, of a tax laid more 
than six months before the election, will not entitle the individual 
so assessed to vote. 1 

§ 88. Under a constitution declaring that " every free white male 
citizen, of the age of twenty-two years or upwards, having resided 
in the state one year next before the election, and the last month 
thereof in the county where he offers to vote, and having, within 
two years next before the election, paid a county tax, which shall 
have been assessed at least six months before the election, shall 
enjoy the right of an elector," 2 where a county tax is assessed against 
the land of a father, for several years after he dies intestate, and it 
is paid by one of his sons and heirs at law, who still own the land 
in fee as coparceners, such assessment and payment, being made 
within the time prescribed in the constitution, will entitle any other 
son and coparcener otherwise qualified to vote. 3 The committee 
reported that, under the statute of Pennsylvania, a person not as- 
sessed could not vote, without answering, under oath, certain ques- 
tions relating to age, residence, and taxation, and also proving his 
residence, by the oath of a qualified voter of the division, and that, 
in all such cases, it was made the duty of the inspector to require 
this proof, whether the vote was challenged or not ; that, in case 
of a challenge, the proof was made necessary, even if the person 
offering to vote had not been assessed ; that, when the vote was 
received, the inspectors were required to add to the list of taxables, 
furnished them by the commissioners, a note of the fact, and of the 
name of the person making such proof for the voter ; and that, at 
one precinct, ninety-eight and, at another, seventy -two unassessed 
persons were permitted to vote, without being sworn themselves, 
or producing witnesses to vouch for them ; that at one of these pre- 
cincts the list of taxables was missing from the box, and at the other 
it failed to show that any proof had been required of any unassessed 

1 Gatlin v. Smith, 2 S. & E. 267. 3 State v. Livingston, 1 Houst. 109. 

2 Const. Del. art. 4, s. 1. 

5 



66 

voter. And the committee held that these polls, which were de- 
cisive of the contest, should be rejected. The minority of the com- 
mittee dissenting, the house sustained the report by a vote of one 
hundred and thirteen to thirty-eight. 1 

§ 89. Assessors had no authority, in Massachusetts, under the 
tax acts, arbitrarily to exclude aged and poor persons from the 
right of voting, by an omission or abatement of their taxes, with- 
out their consent, express or implied ; but if such persons had in 
fact paid no tax, assessed within two years next preceding any 
election, they were not entitled to vote, although such non-payment 
had been occasioned by an exemption, or abatement, under the 
discretionary power of the assessors ; if they had paid any tax, as- 
sessed within two years, they were entitled to vote. 2 When a man, 
who was in possession of real estate of the yearly value of from 
twelve to fifteen dollars, to which he had no legal title, had received 
assistance from the town, for the support of a minor child, who was 
an idiot, and had also, for that reason and on account of his pov- 
erty, been exempted from taxation for several years, it was held 
that he was not qualified to vote, in the election of representatives 
to the legislature of Massachusetts. 3 Persons whose taxes are 
abated " by reason of age, infirmity, or poverty," or who, for these 
reasons, are not assessed by the assessors, are not " citizens 
exempted by law from taxation," and are not entitled to vote, with- 
out paying taxes. 4 Persons who have been exempted from taxa- 
tion, on account of their poverty, under the laws 5 of Massachusetts, 
for two successive years before their arrival at the age of seventy, 
are not entitled to vote under the constitution 6 as persons exempted 
by law from taxation. 7 Persons more than seventy years of age, 
being destitute of taxable property, who would be assessed a 
poll-tax, but for the exemption by reason of age, are entitled to 
vote, being otherwise qualified ; but persons more than seventy 
years of age, having taxable property, which the assessors, in their 
discretion, exempt from taxation, bj reason of age, infirmity, or 
poverty, are not entitled to vote. 8 

1 Myers v. Moffatt, 2 Bart. 564. ° Const. Mass. art. 3, Amendments. 

2 Opinion of the Justices, C. S. & J. 285. 7 Opinion of the Justices, C. S. & J. 535. 

3 French's case, id. 257. "Report of Committee, id. 413 ; Rich- 

4 Opinion of the Justices, id. 285. ards' case, id. 502. 
5 Rev. Stat. Mass. c. 7, s. 8 ; Stat. Mass. 

1843, c. 87, s. 1. 



67 

§ 90. In Massachusetts persons who are assessed and pay the 
taxes necessary to qualify them as voters, between October 1 and 
November 1 preceding the election, and are then registered as 
voters, are illegally assessed and not qualified to vote at the elec- 
tion. 1 A person cannot be registered, as a voter, after the expira- 
tion of the time fixed by law, and, if not qualified then, he has no 
legal right to vote ; so that, where a voter fails to pay the tax 
necessary to qualify him to vote, before the day of election, 
the payment is too late, and his vote must be rejected. 2 The 
assessors of a town have no legal authority, after the assessment 
of a general tax has been made and committed for collection, to 
assess a poll-tax, or other tax, on any person otherwise qualified, 
for the purpose of enabling him to vote ; nor will the payment 
of a tax, so assessed, qualify a person to vote'. 3 In that state 
the assessors of the town have no power to abate the tax of a 
voter, so as to affect his right of suffrage, except upon his appli- 
cation and with his full knowledge and consent, and any attempt 
to abate it, without such consent, will prove ineffectual. 4 In 
towns, where no state or county tax is assessed, the inhabitants 
are nevertheless entitled to vote. The failure to assess a tax is 
virtually exemption from taxation. 5 When certain names, on the 
voting list, are marked with a sign, to indicate that the persons, 
whose names are so marked, have not paid the required tax, and 
the officers of election are instructed not to refuse the vote of any 
person, whose name is so marked, but to challenge it, and if, upon 
challenge, the voter insists upon voting at his peril, to receive the 
vote, the burden of proof is upon the person contesting the legality 
of the vote, when so received, to prove that such voter has not paid 
the required tax. 6 An incoming tenant's proportionate part of a 
poor rate previously made does not become payable, so as to fix 
his liability therefor, as a disqualification for voting, until the 
amount is ascertained and demanded. 7 

§ 91. A statute of Georgia, enacted in 1874, contained the fol- 
lowing clause : " And it shall not be lawful for any manager of an 
election, or other person, to receive any money for taxes, on the 

1 Hillman v. Flanders, L. & E. 338. 4 Baker v. Hunt, L. & E. 378. 

2 Claflin v. Wood, L. & E. 353. 5 Keport of Committee, C. S. & J. 414. 

3 Opinion of the Justices,. C. S. & J. 6 Ordway v. Woodbury, L. & B. 163. 
343. 7 Flatcher v. Boodle, Hop. & Phil. 238. 



68 

day of election, except the tax collector ; and if any voter shall 
vote, who has not paid his taxes, his vote shall be illegal, and the 
commissioners, who consolidate the returns of the election, shall 
not count such votes, in making out the return." 1 It was held, 
by the supreme court of Georgia, that a person, who paid his taxes, 
on the day of the election, to a constable, who had received the 
fieri facias for taxes, for collection, from the tax collector, was not 
indictable, under a statute enacted in 1878 5 providing for the in- 
dictment of any voter, " who has not paid all taxes, which, since the 
adoption of the present constitution of this state, have been re- 
quired of him, previous to the year in which said election occurs, 
and which he has had an opportunity of paying according to law." 2 
And when, under the statutes above cited, an execution had been 
issued, for taxes, and placed in the hands of a constable for col- 
lection, he was, pro hac vice, the tax collector, and payment of 
the tax to him, on the day of the election, was payment to an 
officer authorized by law to receive it. 3 

§ 92. When the constitution confers upon " registry voters " the 
" right to vote, in the election of all civil officers, and on all ques- 
tions, in all legally organized town, or ward, meetings," subject to 
a proviso that " no person shall, at any time, be allowed to vote, 
in the election of the city council of the city of Providence, or 
upon any proposition to impose a tax, or for the expenditure of 
money, in any town, or city, unless he shall, within the year next 
preceding, have paid a tax assessed upon his property therein 
valued at least at one hundred and thirty-four dollars," 4 the limi- 
tations upon the right to vote for aldermen and common council- 
men, in the city of Providence, cannot be extended, by construc- 
tion, to other cities ; and statutes, which apply such limitations 
to other cities, are unconstitutional and void. 5 In such a consti- 
tutional provision the words "within the year next preceding" 6 
denote the twelve months next previous to the election, not the 
calendar year preceding. Hence the tax, which qualifies voters 
for the municipal election, in November, is the tax paid in the 
October before such election, not the tax paid in the October of 
the previous year. 7 

1 Stat. Ga. Mch. 2, 1874. 5 Opinion of Judges, 14 K. I. 655. 

2 Code Ga. 1882, s. 4568. 6 Const. R. I. art. 2, s. 2. 

s Austin v. State, 71 Ga. 575. 7 Opinion of Judges, 13 R. I. 737. 

1 Const. R. I. art. 2, s. 2. 



69 

§ 93. Men who are living with their mothers, or younger 
brothers, or sisters, in the absence, or after the death, of their 
fathers, taking charge of and providing for their families, are to 
be deemed " honse-keepers and heads of families," within the 
meaning of the constitution of Virginia, although such persons are 
unmarried. 1 When the voter keeps house, having a woman living 
with him, as his wife, he is the head of a family, within the mean- 
ing of the constitution, and the committee will not enquire whether 
he is legally married, or not. 2 

§ 94. A state may prescribe a test-oath for all electors, without 
violating the constitution of the United States. 3 But if the legis- 
lature of a state be not empowered, by the state constitution, to 
prescribe the qualifications of voters, it cannot prescribe a test- 
oath which shall add any substantive qualification to those pre- 
scribed in the constitution, and yet may prescribe a test-oath 
which, without adding to, or changing, the qualifications prescribed 
in the constitution, shall be effectual to disclose the presence, or 
absence, of such qualifications. If, however, the legislature be 
invested, by the constitution, with power to prescribe the qualifi- 
cations of voters, it may prescribe a substantive qualification, in 
the form of a test-oath. That article, of the constitution of Mis- 
souri, which provides that " every person shall, at the time of 
offering to vote, and before his vote shall be received," take an 
oath of loyalty therein prescribed, and that " any person declining 
to take said oath shall not be allowed to vote," is not in conflict 
with the constitution of the United States. 4 A statute of the state 
of Nevada contained the following clause : " In addition to the 
qualifications of an elector, which now are, or hereafter may be, 
prescribed by law, every person, applying to be registered, shall, 
before he shall be entitled to have his name registered, take and 
subscribe the following oath : 'I do solemnly swear (or affirm) 
that I will support, protect, and defend the constitution and gov- 
ernment of the United States against all enemies, either domestic, 
or foreign, and that I will bear true faith, allegiance, and loyalty 
thereto, any ordinance, resolution, or law of any state, or territory, 

1 Draper «. Johnston, C. & H. 702. see Burkett v. McCarty, 10 Bush. (Ky.) 

2 Ibid. 758. 

3 Blair v. Eidgely, 41 Mo. 63. But 4 Blair v. Eidgely, 41 Mo. 63 ; Burch v. 

Van Horn, 2 Bart. 205. 



TO 

to the contrary notwithstanding.' " x This oath was not prescribed, 
in the constitution, as one of the qualifications of the elector. The 
supreme court of the state held that, although it was competent 
for the legislature to prescribe an oath, as a test of the elector's 
qualifications, it could not add any qualifications to those pre- 
scribed in the constitution ; that the statute in question prescribed, 
not a test of, but an addition to, the elector's qualifications ; and 
that it was in conflict with the constitution and void. 2 

x Laws Nev. Mch. 5, 1859, s. 5. 2 Clayton v. Harris, 7 Nev. 64. 



CHAPTER V. 



DISQUALIFICATIONS OF VOTERS. 







Secs. 


1. 


Idiots and lunatics 


. 95 


2. 




. 96 


3. 


Deaf-mutes 


. 97 


4. 




. 98 


5. 


Indians 


. 99 


6. 




. 100 



Secs. 

7. Polygamy, duellists, wagers . 101 

8. Rebellion . . . .102 

9. Bribery . . . . .103 

10. Peerage 104 

11. Office-holders . . . .105 



§ 95. Idiots and lunatics are excluded from the right of suffrage. 
It is competent to show, in a contested election case, that a voter 
is non compos mentis, without a rinding in lunacy. 1 A man, who 
is neither an idiot, nor a lunatic, is entitled to vote, although his 
mind may be greatly enfeebled by age. 2 A person, who is capa- 
ble of performing ordinary labor and transacting ordinary busi- 
ness, who knows money and its value, and makes his own bargains, 
though vacillating and easily persuaded, or laboring under some 
hallucination, or illusion, which does not extend to political affairs, 
or incapacitate him for business, cannot be deprived of the right 
to exercise the elective franchise on the ground of want of mental 
capacity. 3 

§ 96. Conviction of infamous crime disqualifies the convict for 
the exercise of the right of suffrage. The constitutional and stat- 
utory provisions, on this subject, assume different forms in the 
different states. To warrant the rejection of a vote, by the officers 
of election, on account of crime, the record of conviction, or a 
duly authenticated copy thereof, must be produced. 4 A general 
and absolute pardon, constitutionally granted by the governor of 
a state, relieves the person pardoned from penalty for crime, and 
from all disabilities consequent upon conviction, and restores him 
to the full enjoyment of all his civil rights, including the elective 
franchise. 5 Where a state constitution makes conviction of crime, 



'Covode v. Foster, 2 Bart. 600; 
Thompson v. Ewing, 1 Brewst. 68. 

2 Sinks v. Reese, 19 Ohio St. 306. 

3 Clark v. Robinson, 88 111. 498. 



4 Goetschens v. Matthewson, 58 Barb. 
152. 

5 Garland's case, 4 Wall. 333; Dun- 
ning's case, 10 Johns. 233 ; People v 



71 



72 

under the laws of the United States, the ground for excluding 
the convict from the right of suffrage, a pardon, by the president, 
will absolve from guilt and relieve from the consequences of con- 
viction, in the same manner and to the same extent as would a 
pardon granted, by the governor, to a person convicted, under the 
law of the state. x It has been held, by the supreme court of the 
state of Kentucky, that while a citizen may expatriate himself, 
with the consent of his state, express or presumed, no act of 
legislation can denationalize a citizen, against his will, without 
judicial conviction of some crime, or act, denounced by the statute 
as a forfeiture of citizenship, and that the question whether a 
citizen has been guilty of an offence, involving the forfeiture of 
his right to vote, is a judicial question, which it is competent for 
the courts to decide upon trial, on indictment, or presentment, 
but which cannot be constitutionally adjudicated collaterally, or 
incidentally, by the officers of election ; that a test oath cannot 
be required, in such case, nor the refusal to take such oath be 
deemed a judicial trial and conviction of the imputed offence ; 
and that a legislative act cannot make voluntary rebellion invol- 
untary expatriation. 2 

The court will not grant a habeas corpus, to enable a prisoner, 
upon conviction of misdemeanor, to vote at an election of member 
of parliament. 3 

§ 97. The provision of the constitution of Kentucky that, " in 
all elections by the people, the votes shall be personally and pub- 
licly given, viva voce,'" does not exclude the votes of deaf and 
dumb persons. 4 

§ 98. An act of congress providing that deserters from the mili- 
tary, or naval, service, who shall not return to duty, within a period 
of time specified in the act, shall be incapable of exercising any 
right of citizens of the United States, is constitutional and valid. 
It is not an ex post facto law, for the punishment of past offences, 
but inflicts the prescribed penalty for persisting in the crime after 

Pease, 3 Johns. Oas. 333; Perkins v. 2 Burkett v. McCarty, 10 Bush. (Ky.) 

Stevens, 21 Pick. 277 ; 4 Blackst. Comm. 758. 

402 ; 8 Bacon's Abr., Pardon; Wood v. 3 Jones' case, 2 A. & E. 436. 

Fitzgerald, 3 Oregon, 569. 4 Letcher v. Moore, C. & H. 715. The 

J Jones v. Board of Registers, 56 Miss. contrary decision of the senate of Ken- 

766. tucky, in the case of Williams v. Mason, 

was not approved. 



73 

the passage of the act. It is not a regulation of suffrage in the 
states, but is a provision for the punishment of crime by depriving 
the criminal of an opportunity to exercise a right, which belongs 
to him as a citizen of the state, — just as the imprisonment of a 
criminal within the state, or the removal of a drafted soldier from 
the state, may deprive him of an opportunity to exercise his right 
to vote. But the penalty can only be inflicted after trial and con- 
viction, by due process of law, by a court martial, or by some 
other competent judicial tribunal. The officers of election do not 
constitute a tribunal competent to adjudicate such a case. 1 When 
it is provided in the state constitution that all persons having cer- 
tain designated qualifications shall be entitled to vote, an act of 
the legislature withholding the right of suffrage from persons 
drafted into the military service, who, upon due notice, fail to 
report for duty, is unconstitutional and void. Under the act of 
congress, approved March 3, 1865, providing that deserters "shall 
be deemed and taken to have voluntarily relinquished and forfeited 
their rights of citizenship," inspectors of election have no right 
to refuse a vote on the ground that the person offering it is a de- 
serter, where no evidence is produced of his conviction and con- 
sequent forfeiture of the rights of citizenship. 3 Under a statute 
declaring that, " if the person be challenged as convicted of an 
infamous crime, he shall not be required to answer any questions 
in relation to such alleged conviction, nor shall any proof of such 
conviction be received other than a duly authenticated record 
thereof ; but, if any person, so convicted, shall vote at any such 
election, unless he shall have been pardoned and restored to all 
the rights of a citizen, he shall be deemed guilty of a misdemeanor, 
and, on conviction, shall be imprisoned, in the county jail, for the 
term of six months," 4 a challenged voter cannot be questioned 
as to his alleged desertion from the military service of the United 
States. 5 

] Huber v. Eeilly, 53 Penn. St. 112; 5 Goetschens v. Matthewson, 61 N. Y. 

State v. Symonds, 57 Me. 148. 420. 

2 McCafferty v. Guyer, 59 Penn. St. By the constitution of Ohio citizen- 

109 ; State v. Adams, 2 Stew. 239. ship of the United States was made one 

3 Goetschens v. Matthewson, 61 N. Y. of the qualifications of electors. By an 

420. act of congress, passed March 3, 1865, 

4 Stat. N. Y. 1842, c. 130, t. 5, art. 2, it was provided that all persons, who 

s. 23. had deserted the military, or naval, ser- 



n 



§ 99. A half-breed Indian, who, by his manner of living and 
place of abode, was assimilated to and associated with the great 
body of the civilized community, who had never been a member 
of any tribe, and who was possessed of the other necessary quali- 
fications, was entitled to vote for delegate, in Michigan territory, 
in 1825. But a half-breed, who was a member of a tribe, or an 
outcast, uncivilized in his deportment and manner, was not so 
entitled. 1 Indians who retain their tribal characteristics, form a 
communitv distinct from the whites, make their own local laws, 
are governed by. their own chiefs, do not substantially differ from 
other savage tribes, and are excluded from the elective franchise, 
by the territorial laws, are not entitled to vote for territorial dele- 
gate to congress. 3 Where Indians held an election, at their own 



vice of the United States, and who 
should not return to the service, or re- 
port to a provost marshal, within sixty 
days after the proclamation therein men- 
tioned, should be deemed to have vol- 
untarily relinquished and forfeited their 
rights of citizenship and their right to 
become citizens It was held, by a ma- 
jority of the committee, that, under 
these provisions, a deserter, whether 
convicted, or not, was not a legal voter ; 
that the fact of desertion worked his 
disfranchisement ; that it was compe- 
tent for the house to find the fact. The 
minority were of the opinion that, not- 
withstanding the constitutional and 
statutory provisions above-mentioned, 
deserters were legal electors ; that, even 
if the statute were valid, until convic- 
tion their right to vote would not be im- 
paired ; that it was not competent for 
congress to inflict punishment by depriv- 
ing citizens of states of their rights 
through mere legislative declarations; 
that congress could not regulate suf- 
frage in the states, either by direct 
legislation to that end, or under the pre- 
text of punishing men for alleged de- 
sertion ; that the regulation of suffrage 
belonged exclusively to the states ; that 
congress had no authority to confer 
judicial power upon the judicial author- 
ities of a state, or upon such quasi judi- 



cial tribunals as election boards ; that 
the act of March 3, 1865, had the single 
object of increasing the penalties for 
desertion, and did not undertake to 
change or dispense with the machinery 
provided for punishing the crime ; that 
where United States citizenship was 
made a qualification of the elector, by a 
state constitution, congress had not the 
power, by a withdrawal of citizenship, 
through mere legislative declarations, 
without due process of law, to take 
away the right to vote, which is con- 
ferred, not by federal, but by state law ; 
that naturalization does not confer the 
right to vote at a state election, but that 
right is a state right which congress can 
neither give nor take away ; that while 
congress may, in the exercise of its 
admitted powers, deprive an individual 
of the opportunity to enjoy this right, 
it cannot take away or impair the right 
itself; that the act of March 3, 1865, if 
by its terms it works the disfranchise- 
ment of deserters, is so far unconstitu- 
tional and void, because it is an ex post 
facto law, and a bill of pains and penal- 
ties (Delano v. Morgan, 2 Bart. 168. The 
report of the majority was sustained, by 
a vote of 80 to 38). 

1 Biddle v. Wing, C. & H. 504. 

2 Lane v. Gallegos, 1 Bart. 164 ; Daily 
v. Estabrook, id. 299. 



75 

pueblo, appointed their own chiefs to conduct it, and made the 
return to the secretary of the territory, disregarding the statute, 
which made it the duty of the probate judge to select the place 
and appoint the judges, the votes were rejected. 1 Under the 
organic act of the territory of Nebraska, persons, who resided 
on the Pawnee reservation, were not residents of any part of the 
territory, and were not entitled to vote therein. 2 

§ 100. Paupers are sometimes excluded, by constitutions, or 
laws, from the enjoyment of the right of suffrage. Paupers, in 
the sense of statutes relating to elections, are persons who re- 
ceive aid from the public, under provisions made by law for the 
support and maintenance of the poor. 3 Their votes are to be 
counted, unless they are disfranchised by state law. 4 Under a 
constitution declaring that " every male citizen, of tw T enty-one 
years of age and upwards (excepting paupers and persons under 
guardianship), * * shall have a right to vote, * * and no 
other person shall be entitled to vote," 5 a pauper is a person who 
receives aid from the public, for himself, or his family, under pro- 
visions made by law for the support and maintenance of the poor, 
and the lapse of a definite period of time, after the termination of 
the disqualification of pauperism, or guardianship, is not neces- 
sary to entitle a man, actually free from every such disqualification, 
and in other respects duly qualified, to exercise the right of suf- 
frage. 6 A voter, who, for three months prior to September 23, 
1867, had been assisted by the town, to the extent of $23, on 
account of his wife's sickness, and had, eight years before, received 
$45, when four of his children died, in one month, which latter 
sum he had repaid, and, after September 23, had not been assisted, 
and was able, if well, to take care of himself, was held not to have 
been disqualified by pauperism, to vote at the November election, 
in 1867. 7 A voter in Middleborough, living with a woman, not 
his wife, who had two children, was able to support himself, but 
the woman was unable to support herself, and the town of Carver, 
in which they all had a settlement, employed a neighbor to give 
him and his family $1.50 per week, which was regularly paid to 

1 Lane v. Gallegos, 1 Bart. 164. 5 1 Const. Mass. Amend. 3. 

2 Morton v. Daily, id. 402. c Opinion of the Justices, 124 Mass. 

3 Opinions of the Justices, C. S. & J. 576. 

285. 7 Shaw v. Abbott, L. & K. 139. 

4 Koontz v. Coffroth, 2 Bart. 138. 



76 

tliem, mostly in provisions. It was held that he was a pauper and 
not qualified to vote. * Pensioners at a hospital, who are entitled 
by law to receive not less than 3s. 6d. per week, in addition to 
fuel and clothing, but who, in fact, receive 10s. per week, in addi- 
tion to clothing and fuel, are not entitled to the franchise. 2 To 
take the benefits of an incorporated charity, as one entitled per- 
manently to share in its revenues and advantages, is not a receiving 
of " alms," so as to disqualify from voting. 3 The mere fact that 
occupation was originally conferred from charitable motives, and 
is still enjoyed with restrictions, will not, if the interest of the 
occupier amount to a freehold, preclude him from the exercise of 
the elective franchise. 4 Inmates of an almshouse, removable at 
the pleasure of the trustees, are not entitled to registration as free- 
holders. 5 

§ 101. Duellists, polygamists, and parties to wagers, made on 
the results of elections, are sometimes excluded, by constitutional, 
or statutory, provisions, from the exercise of the right of suffrage. 

§ 102. Rebel soldiers were legal voters, after the close of the 
war, unless disqualified by state law. 6 There was no law of the 
United States, or of the state of Kentucky, disfranchising persons 
who were common soldiers in the rebel army. These persons were 
legal voters, under the laws of most of the states of the union. 
They were entitled to vote, under the constitution and laws of 
Kentucky, for members of the most numerous branch of the state 
legislature, and were, therefore, entitled to vote for representatives 
in congress, under the provisions of section 2, article 1, of the con- 
stitution of the United States. 7 Rebel soldiers at home, on parole 
as prisoners of war, being virtually in armed hostility to the United 
States, were not legal voters. 8 The right to vote, when withheld 
by state law, on account of participation in rebellion, is not 
restored by the pardon of the president. It is a political right, 
and while ordinary civil rights are inalienable, political rights are 
conferred, and may be withdrawn, by the sovereign power. 9 

1 Shaw v. Abbott, L. & K. 139. 5 Simpson v. Wilkinson, 7 M. & G. 50. 

2 Ashmore v. Lees, 15 L. J. C. P. 65. B MeKee v. Young, 2 Bart. 422. 
See also Steele v. Bosworth, 18 C. B. N. 7 Barnes v. Adams, id. 760. 

S. 22. 8 McKee v. Young, id. 422. 

3 Smith v. Hall, Hop. & Ph. 11. 9 Ridley v. Sherbrook, 3 Coldw. 569. 

4 Fryer v. Bodenham, 1 Hopw. & C. 
204. 



77 

§ 103. In England no person who, within six months of an elec- 
tion, has been retained, hired, or employed, for reward, for any 
purposes of the election, by, or on behalf of, any candidate, as 
agent, canvasser, clerk, or messenger, may vote at the election. 
If he do so, he will be liable criminally, and, on a scrutiny, one 
vote, for the candidate, may be struck off, for every such agent 
who has voted. 1 

§ 104. A peer of the realm is not entitled to be registered, as a 
voter, for the election of members of parliament. 2 An Irish peer, 
who, at the time of registration, is not a member of the house of 
commons, is incapacitated, by law, from voting at parliamentary 
elections. 3 

§ 105. In England personal disqualifications for the exercise of 
the elective franchise have been imposed, at different times, by 
statute, upon police magistrates, 4 police constables under certain 
defined restrictions, 5 commissioners and other officers of excise, 6 
letter carriers, 7 recipients of parochial relief or alms, 8 and persons 
guilty of bribery and corrupt practices at elections. 9 

1 35 & 36 Vict. c. 33, s. 25. 6 7 and 8 Geo. 4, c. 53, s. 9. 

2 Beauchanrp v. Maresfield, 2 Hopw. 1 22 Geo. 3, c. 41, s. 1. 

& C. 41. 8 30 and 31 Vict. c. 102, s. 40; 2 W. 4, 

3 Kendlesham v. Haward, id. 175. c. 45, s. 36. 

4 2 and 3 Vict. c. 71, s. 6. 9 Ballot act, 1872, s. 25. Boston Elec- 
6 19 and 20 Vict. c. 69, s. 9. tion, 43 L. J. C. P. 331. 



CHAPTER VI. 



RIGHT OF REPRESENTATION IN LEGISLATIVE BODIES; RIGHT TO 
ELECT EXECUTIVE AND JUDICIAL OFFICERS. 



Secs. 
Right of representation in the 
congress of the United States. 

(1) States in general . . 106 

(2) New states . . . .107 

(3) States in insurrection . 108, 109 

(4) Reconstructed states . .110 

(5) Territories . . . 111-117 

(6) District of Columbia . .118 



Secs. 

Right of representation in state 
legislatures . . . 119, 120 

Right of representation in terri- 
torial legislatures . . . 121 

Right of representation in legis- 
lature of District of Columbia . 122 

Right to elect executive and ju- 
dicial officers . . . 123-125 



§ 106. The right to choose the incumbents of particular offices, 
whether legislative, executive, or judicial, by popular election, 
depends wholly on the organic, or statutory, law. The right to 
elect legislative officers is generally maintained, in governments 
wholly, or partially, republican, but, as to executive and judicial 
officers, the practice differs in different governments, and has dif- 
fered, at different times, in the same government. In the United 
States, as in England, the right of the people to elect the mem- 
bers of the lower house of the national legislature is unquestioned. 
So also is the right of the people to elect municipal officers for 
towns and cities, and in the United States the chief executive officers, 
and the members of both branches of the legislatures of the several 
states, and also the county officers, have been generally elected by 
the people. But judicial officers, and subordinate executive offi- 
cers, have not always been, as they now generally are, chosen by 
the people. No executive, or judicial, officers of the federal gov- 
ernment are chosen by the people. Only representatives in con- 
gress and electors of president and vice-president are so chosen. 
The right of representation in congress is secured to the several 
states by the following provisions of the constitution of the United 
States : "All legislative powers herein granted shall be vested in 
a congress of the United States, which shall consist of a senate 
and house of representatives." 1 " The house of representatives 



1 Const. U. S. art. 1, s. 1. 

78 



79 

shall be composed of members chosen, every second year, by the 
people of the several states, and the electors, in each state, shall 
have the qualifications requisite for electors of the most numerous 
branch of the state legislature." 1 "Representatives and direct 
taxes shall be apportioned among the several states which may be 
included within this union, according to their respective numbers, 
which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and 
excluding Indians not taxed, three-fifths of all other persons. * * 
The number of representatives shall not exceed one for every 
thirty thousand, but each state shall have at least one representa- 
tive." 2 "Representatives shall be apportioned among the several 
states according to their respective numbers, counting the whole 
number of persons in each state, excluding Indians not taxed. 
But when the right to vote at any election for the choice of elec- 
tors for president and vice-president of the United States, repre- 
sentatives in congress, the executive and judicial officers of a state, 
or the members of the legislature thereof, is denied to any of the 
male inhabitants of such state, being twenty-one years of age, 
and citizens of the United States, or in any way abridged, except 
for participation in rebellion, or other crime, the basis of repre- 
sentation therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number of 
male citizens twenty-one years of age in such state." 3 "The 
senate of the United States shall be composed of two senators 
from each state, chosen by the legislature thereof, for six years ; 
and each senator shall have one vote." 4 "New states may be 
admitted by the congress into this union ; but no new state shall 
be formed, or erected, within the jurisdiction of any other state ; 
nor any state be formed by the junction of two or more states, 
or parts of states, without the consent of the legislatures of the 
states concerned, as well as of the congress." 5 

§ 107. New states, formed of territory of the United States, or'by 
the division of a state, or by the junction of two or more states, 
or by the annexation of foreign states, are entitled to the same 

1 Const. U. S. art. 1, s. 2. 4 Const. U. S. art. 1, s. 3. 

2 lb. 5 Id. art. 4, s. 3. 

3 Const. U. S. Amendments, art. 14, s. 2. 



80 

representation in congress as the original states. When a new 
state is formed of territory of an old state, it is entitled to two 
senators and to such number of representatives as shall bear to 
the whole number, to which the old state was entitled, the same 
proportion which the enumerated population of the new state 
bears to the entire enumerated population of the old state. 1 In 
1858 the committee of elections of the house of representatives 
of the United States reported, in substance, as follows : The 
admission of a new state into the union gives validity to an elec- 
tion of senators and representatives in congress held upon the 
admission of the state. If it could be asserted that there is no 
force in numerous precedents scattered through the journals of 
congress and extending back to the earliest times of the republic, 
sanctioning the admission of representatives chosen before the 
admission of the state into the union, it should nevertheless be 
considered that congress, by the enabling act, authorizing the for- 
mation of a constitution and state government, fully empowered 
the people to prepare themselves to assume, upon their admission, 
all the rights, powers, and attributes of a sovereign state in the 
union. One of these rights is that of being represented in con- 
gress ; and, if elections of representatives, held prior to admission, 
are void, the state must remain unrepresented, after its admission 
and until an election can be subsequently held. This would pre- 
sent the anomalous spectacle of a state in the union, without 
representation, or voice, in the national councils. The act of ad- 
mission into the union, upon its consummation, relates back to and 
legalizes every act of the territorial authorities, exercised in pur- 
suance of the powers originally conferred. As the election of 
members of this house looks directly to the end contemplated by 
the enabling act of congress, it seems to fall entirely within the 
scope of the authority conferred upon the people of the territory. 2 
§ 108. States in insurrection against the authority of the United 
States are not entitled to representation in congress. Insurrec- 
tionary states, upon the renewal of their allegiance to the federal 
government, and the restoration of their practical relations with 
the union, are entitled to the same representation in congress as 

1 Segar's case, 2 Bart. 810. vote of 135 to 63. But see cases of 

3 Cases of Phelps and Cavanaugh, 1 Cocke and Blount, C. & H. 868. 
Bart. 248. The house concurred, by a 



81 

the other states. The committee of elections of the senate of the 
United States held that, inasmuch as the local authorities of Louis- 
iana had rebelled against the government of the United States, 
and the inhabitants of the state had in pursuance of a law of the 
United States, been declared to be in insurrection, it would be 
improper for the senate to admit senators from Louisiana, until, 
by some joint action of both houses of congress, there should be 
a recognition of an existing state government, acting in harmony 
with the government of the United States, and recognizing its 
authority. 1 In 1864 about one-fourth of the voters of Arkansas 
took part in an attempted reorganization of a loyal state govern- 
ment. The president's proclamation, declaring the inhabitants of 
Arkansas in a state of insurrection against the United States, was 
still in force. The state was occupied by hostile armies, which 
exercised supreme authority within the districts subject to their 
control. The committee held that the reorganized government 
was not a republican government, in the sense of the constitution ; 
that when the rebellion should have been so far suppressed in the 
state that the loyal inhabitants should be free to re-establish their 
state government, upon a republican foundation, and should be 
able to maintain it, with the aid of, but not in subordination to, 
the military authority, then, but not before, they would be entitled 
to representation in congress ; and they therefore held that the 
claimants were not entitled to seats in the senate. 2 

§ 109. After the secession of the state of Tennessee, the union 
electors in four of the ten congressional districts voted for repre- 
sentatives in the congress of the United States, on the day fixed 
by the constitution and laws of the state in force before and until 
the secession. Such of the sheriffs as were disloyal refused to 
make the certificates required by law, and all that were made 
were suppressed by the governor, who was himself actively en- 
gaged in the attempt to overthrow the government ; and he issued 
no certificates to the persons elected. It was held that, inasmuch 
as it appeared that on the day of the election no armed force pre- 
vented any considerable number of voters, in any part of the clis- 

1 Cases of Cutler and Smith, 1 Bart. 2 Cases of Baxter and Fishback, 1 Bart. 

643. The senate did not act upon the 641. 
report. The claimants were not admitted 
to seats. 

6 



82 

trict, from attending the polls, the election was valid and the rep- 
resentative elect was entitled to his seat. 1 The constitutional 
convention of Louisiana, which was called by the department 
commander and the civil governor of the state, and was chosen 
in 1864, under a proclamation of the department commander, 
and framed the constitution which was ratified by the people 
September 5, 1864, adjourned on the 25th of July, 1864, having, 
by an ordinance, divided the state into five congressional dis- 
tricts and directed elections to be held therein on the 5th of 
September, 1864. The majority of the committee held that there 
was no state law providing for the adoption of a constitution 
and the restoration and reorganization of the state government ; 
that congress had no power in the premises ; that the restora- 
tion and reorganization of the state government had been, in 
fact, the work of the people of Louisiana, in the legitimate exer- 
cise of an inherent and inalienable right ; that the government, 
being republican in form, was entitled not only to recognition by 
congress but also to the guaranty provided in the constitution ; 
and that, accordingly, the representatives elected ought to be 
admitted. The minority of the committee were of the opinion that 
the state government could only be re-established by the voluntary 
action of the loyal people of Louisiana ; that only a small portion of 
the people took part in the election, and their action was not volun- 
tary, but was constrained by military authority ; that, without an 
organized state government, recognized by act of congress, there 
could be no right of representation ; and that the representatives 
elect ought not to be admitted to the house. 2 The decision of 
the committee, in these cases, was substantially the same as 
in two cases from Arkansas, which were reported at the same 
session. 3 

§ 110. Upon the readmission of the state of Virginia to repre- 
sentation in the congress of the United States, in 1870, it was 
insisted that the state was entitled to nine representatives in the 
house, on this ground, amongst others, that Virginia was, upon 

1 Clement's case, 1 Bart. 366. The cases were not reached in the house, and 
house concurred. the claimants were not seated. 

2 Bonzano's case, 2 Bart. 1; Field's case, 3 Cases of Johnson and Jacks, 2 Bart. 
2 Bart. 15 ; Mann's case, 2 Bart. 16. The 17. The house did not act upon these 

cases. The claimants were not seated. 



83 

readmission to representation, entitled to the same number to 
which her aggregate population, including all the slaves as shown 
by the census of 1860, would entitle her, if it were her original 
admission to the union. The majority of the committee held that 
while this, if true, might be a good reason for asking congress to 
enact a law giving Virginia nine representatives, it could not be a 
sufficient reason for asking the house to admit nine representa- 
tives, without a law of congress to authorize it. But they also 
held that it was not true that Virginia could justly ask that a law 
should be enacted to allow her, at once, as the result of her seces- 
sion from and readmission to the union, that increase of represen- 
tation for which the other states, loyal and disloyal, slave and 
free, were required to wait until the apportionment under the next 
census ; that if Virginia was entitled to immediate representation 
of the two-fifths of her colored population, recently added to her 
basis of representation, by the fourteenth article of the amend- 
ments to the constitution of the United States, without awaiting 
the next census, so also was each of the other lately insurgent 
states, and the cases of most of them were stronger than that of 
Virginia, because their proportion of blacks was greater ; that if 
Virginia was entitled to such increase, so also were Maryland, 
Delaware, Kentucky and Missouri, unless Virginia was to be so 
distinguished from the others because she rebelled, seceded and 
was readmitted, while they did not ; that if Virginia was entitled 
to enjoy, at once, this increase, for which Iowa and the other free 
states were to await until the next enumeration and apportionment, 
it was necessarily for one or more of these three reasons, first, 
that the increment to the basis of representation in Virginia had 
resulted from a constitutional amendment, while that of Iowa and 
the other states always free had resulted from actual increase of 
population, or, second, that the increment in Virginia was colored 
and that in the other states white, or, third, that Virginia rebelled, 
while Iowa and the other states remained loyal ; these reasons 
were all unsound, and such a law, if enacted, should be a general 
law to enure to the benefit of all the states. 1 The county of 
Berkeley had not ceased to be a part of the state of Virginia, or 
of the seventh congressional district of that state, on the fifth of 

1 Segar's case, 2 Bart. 810. The house adopted the report of the committee, 

without a division. 



84 

August, 1863. 1 Upon the readmission of the state of Tennessee 
to representation in congress, in 1871, a representative at large 
was chosen, in addition to the eight to which the state was en- 
titled under the census of 1860. The majority of the committee 
recommended the enactment of a law authorizing the admission 
of a ninth representative from that state. But the minority op- 
posed the recommendation. The case was not reached in the 
house. 2 

§ 111. It has been repeatedly claimed, in contests for the seats 
of territorial delegates, that the house of representatives had the 
right to exclude, at pleasure, any territorial delegate, by a mere 
majority vote, without exercising either the power of judging of 
the elections, qualifications, or returns, of its members, or the power 
of expulsion. The claim has been based upon the following con- 
siderations. It is provided, in the constitution, that " the house 
of representatives shall be composed of members chosen, every 
second year, by the people of the several states." This is a pro- 
vision not that the house may, but that it must, consist of members 
chosen by the people of the states. It absolutely excludes any 
membership of a different kind. It is a provision, not for the 
partial, but for the entire, composition of the house. A territorial 
delegate cannot be an integral part of the house. The power to 
remove, from the bar of the house, by a mere majority vote, per- 
sons who constitute no part of its membership, is inherent to its 
organization, and essential to its existence ; and it would be pos- 
sessed by the housed even in the absence of a constitutional 
provision expressly conferring or recognizing it. But then it is 
further provided, in the constitution, that, " each house may de- 
termine the rules of its proceedings," and that " each house shall 
be the judge of the elections, returns, and qualifications of its own 
members." These considerations would seem to confirm the right 
of the house to remove territorial delegates, at pleasure, by a mere 
majority vote ; and the right would, therefore, seem to be clear 
and incontrovertible, if controlled altogether by the federal consti- 
tution. But it is not controlled exclusively by that instrument. 
By the ordinance of 1787 3 the legislature of the territory north- 
west of the Ohio river was authorized to elect, by joint ballot, a 

1 McXenzie v. Kitchen, 1 Bart. 468. 3 1 Stat. 52. 

2 Kodger's case, 2 Bart. 94. 



85 

delegate to congress with the right to debate, but not to vote. By 
the fourth article of the deed of cession of the territory south of 
the Ohio, it was required that the inhabitants of that territory 
should enjoy all the privileges, benefits, and advantages secured 
to the people of the northwest territory, by the ordinance of 1787, 
and should be provided with a government similar to that of the 
northwest territory. The cession of the territory south of the 
Ohio, upon these conditions, was accepted, by act of congress, on 
the second day of April, 1790. x It would seem, then, that the 
legislatures of the northwest and southwest territories were, by the 
ordinance of 1787, and the deed of cession accepted in 1790, 
entitled to elect, each, one delegate to congress, with the right to 
debate, but not to vote. The particular house of congress, into 
which the delegate was to be received, was not designated in 
the compact. 

§ 112. The northwest territory, and the territory south of the 
Ohio, were entitled, under the ordinance of 1787 and the deeds 
of cession of those territories, to be represented, in the congress 
of the United States, by delegates, chosen by the legislatures of 
the territories, and having the right to debate but not to vote. It 
was, however, in the power of the two houses of congress to deter- 
mine whether such delegates should be received into the senate, 
or into the house of representatives. The right of the people of 
these territories to be represented, in congress, by delegates chosen 
directly by the people, was not secured by the constitution, or by 
the ordinance of 1787. Congress has no constitutional power to 
confer this right upon the people of the territories. Each house 
may, in its discretion, admit, or exclude, such delegates. The 
right of the people of the territories not included in these two 
territories, to be represented, in congress, by delegates chosen, 
whether by the people or by the legislatures, thereof, was not 
secured by the constitution, nor by the ordinance of 1787 ; nor 
is congress empowered, by the constitution, to confer such right ; 
but it is in the power of either house to admit or exclude such 
delegates. A territorial delegate is not a member of the house of 
representatives of the United States, in the sense of the constitu- 
tion. The house may, at any time, by a majority vote, exclude 

1 1 Stat. 106, 



86 

any person, whom it may judge to be, for any reason, unfit to hold 
the seat of territorial delegate. 1 

§ 113. When the first delegate, from the territory south of the 
Ohio, presented his credentials, there was doubt whether he should 
be received into the senate or into the house. The fact that he 
was elected by the territorial legislature, his relation to the terri- 
tory, and the relation of the territory to congress, seemed to point 
to the senate as the body in which he should take his seat. It 
was finally decided, by the committee, that a delegate chosen by 
the legislature of that territory was legally entitled to a seat, 
with a right to debate, but not to vote, in one of the houses 
of congress. The committee recommended his admission, to the 
house of representatives; and he was accordingly admitted. 3 
However unquestionable and absolute may have been the right of 
the senate and house of representatives to exclude territorial dele- 
gates chosen by the people, it was clearly obligatory upon congress 
to receive into one house, or the other, delegates elected by the 
legislatures of the territories northwest and south of the Ohio. 
It was subsequently held that, by virtue of the ordinance of 1787, 
for the government of the territory northwest of the Ohio, and the 
act entitled "An act for the amicable settlement of limits within 
the state of Georgia, and authorizing the establishment of a gov- 
ernment within the Mississippi territory," passed April 7, 1798, 
and the act supplemental thereto, passed May 10, 1800, the Mis- 
sissippi territory was legally entitled to elect a delegate to congress, 
with the right to debate, but not to vote. 3 The office of delegate, 
then, is not provided for in the constitution. It grew out of the 
ordinance of 1787 for the government of the northwest terri- 
tory, which was adopted before the constitution, and has formed 
the basis of all the territorial governments which have since 
existed. 4 

§ 114. The admission of the state of Ohio into the union, did 
not vacate the seat of the delegate of the northwest territory in 
the house of representatives. 5 The admission of the state of 

1 Cannon v. Campbell, 2 Ells. 605. 3 Hunter's case, C. & H. 120. 

2 White's case, C. & H. 86. In the de- 4 Biddle v. Richard, id. 407. 
bate it was suggested that the delegate 5 Fearing's case, id. 127. 
would more properly be admitted to the 

senate. 



87 

Wisconsin to the union, with the St. Croix river as its northwest- 
ern boundary, left the provisions of the organic act of the original 
territory of Wisconsin still in force beyond the St. Croix, and left 
the inhabitants of that portion of the original territory still entitled 
to all the benefits conferred by that law, and to the same privileges 
of representation in congress which are enjoyed by the inhabitants 
of other territories. The election, to fill the vacancy occasioned 
by the resignation of the delegate who held the office at the time 
of the admission of the state, which was held by virtue of a proc- 
lamation of the acting governor, who had been secretary of the 
territory and became acting governor, upon the election of the 
governor to the senate of the United States, and took up his resi- 
dence beyond the St. Croix, was a legal election and the delegate 
elect was entitled to his seat. 1 

§ 115. In the case of Hugh N. Smith, who claimed a seat in 
the house, in 1850, as a delegate of the people of New Mexico, 
the majority of the committee held that the claimant ought not to 
be admitted, because his admission would be a departure from 
the established usage of the house to receive only such delegates 
as had been chosen, under laws of the United States, to represent 
governments emanating from and subordinate to the constitution 
and laws of the United States ; because it would involve a quasi 
recognition, by the house, of a government where none existed ; 
because it would be unsafe and unwise to receive a delegate 
otherwise than as the representative of an organized territorial 
government ; because the state of Texas claimed the territory, 
which the applicant for a seat sought to represent, and might 
justly complain of any action of the house hostile to the claim ; 
and, because, if New Mexico was a part of Texas, the people were 
already represented in the house. 

The minority were of the opinion that the privilege of the 
citizens of a territory to be represented in the house depended 
neither on the constitution, nor on the law, but wholly on the 
pleasure of the house, whose will was' the law of the case ; that 
the question was addressed to the sound discretion of the house, 
which, if the case was good in principle, ought to make a prece- 
dent for its accommodation ; that it was wiser and safer to err in 
favor of representation than against it ; that the reasons for exer- 

1 Sibley's case, 1 Bart. 102, 



88 

cising this discretion in favor of the applicant were that New 
Mexico was one of the oldest settlements on the continent, and 
had long contained a population of at least 100,000 ; that this 
territory had been a state of Mexico, divided into counties, with 
a state legislature, and a representative in the Mexican congress, 
and had been suddenly deprived of all these rights and privileges 
by her involuntary transfer to the United States ; that Texas did 
not claim all of New Mexico, and there was danger that the house, 
by declining to act on account of the claim of Texas, would, to 
some extent, sanction that claim, which presidents Polk and 
Buchanan had both repudiated ; and that, until the question 
should be decided by law, the people of New Mexico, being in 
fact wholly independent of Texas, ought to be represented by a 
delegate in congress ; and they recommended the admission of 
the applicant. The subject was laid on the table by a vote of 
103 to 93. 1 

§ 116. The enabling act for the state of Minnesota was approved 
February 26, 1857, and the state admitted in May, 1858. The 
boundaries of the state, as prescribed in the enabling act, included 
only a part of the territory of Minnesota. On the 13th of Octo- 
ber, 1857, W. W. Kingsbury was chosen territorial delegate, by 
the electors of the territory, residing mainly, or wholly, within the 
limits of the new state, and took his seat in the house in Decem- 
ber, 1857. Upon the admission of the state A. G. Fuller, claiming 
to have been elected October 13, 1857, by the people of the terri- 
tory of Dakota, so-called, being that portion of the territory of 
Minnesota which was not embraced within the boundaries of the 
state, asked to be admitted as a delegate. The majority of the 
committee found that Mr. Kingsbury received votes outside of, as 
well as within, the limits of the new state ; and they held that the 
territorial government of Minnesota remained, after the admission 
of the state, and covered that portion of the original territory 
which was not embraced within the limits of the state ; and that 
the people thereof were still entitled to a delegate in congress ; 
that Mr. Kingsbury continued to be the delegate from the territory 
in its changed form ; and that Mr. Fuller, as delegate of the ter- 
ritory of Dakota, which was unknown to the laws of the United 
States, was not entitled to admission. The minority found that 

1 Smith's case, 1 Bart. 107. 



89 

Mr. Kingsbury was chosen by the people within the limits of the 
new state of Minnesota, exclusively, and Mr. Fuller by the people 
without those limits ; and that Mr. Kingsbury was not a resident 
of that portion of the territory which lay without the limits of the 
new state ; and they held that Mr. Fuller was entitled to the seat. 
But the house disposed of the case by the adoption of a resolution 
declaring that the admission of the state operated as a dissolution 
of the territorial organization ; that so much of the territory as 
was not included in the new state was without any distinct legally 
organized government ; and that the people thereof would not be 
entitled to a delegate in congress, until the right should be con- 
ferred upon them by congress. Mr. Kingsbury retained his seat, 
and the people residing within the limits of the new state were 
represented, at the same time, by two representatives and one 
delegate. 1 

§ 117. In 1850 the people of New Mexico adopted, without any 
enabling act of congress, a constitution of state government, under 
which a representative in congress was chosen, who applied for 
admission, as a territorial delegate, to the house of representa- 
tives of the thirty-first congress. There was, at that time, no 
legislative authority for a territorial government in New Mexico, 
or for a delegate therefrom. The committee held that he ought not 
to be admitted, because he was elected as a representative of a 
state and not as a delegate from a territory ; because, if he had 
been chosen as a delegate, his admission would be an impolitic 
and dangerous departure from the precedents of the government, 
which only admitted delegates chosen under laws enacted by 
congress and representing organized territorial governments ema- 
nating from and subordinate to the constitution and laws of the 
United States. 2 A delegate chosen by the people of an unor- 
ganized territory, will not be admitted to the house. 3 A part of the 
inhabitants of the Great Salt Lake Valley assembled, in convention, 
on the fifth of March, 1849, and organized a government for the 
state of Deseret, to continue until congress should otherwise pro- 
vide for the government of that territory. The legislature, organ- 
ized, under this constitution, July 5, 1849, elected a delegate to 
congress. It was held by the committee that he ought not to be 

1 Fuller v. Kingsbury, 1 Bart. 251. 3 Casement's case, 2 Bart. 516. 

2 Messervey's case, id. 148. 



90 

received, because this courtesy had only been extended to those 
who had been chosen in pursuance of laws enacted by congress, 
because his admission would be a quasi recognition of the legal 
existence of the state of Deseret, and because, in their memorial, 
the legislature only asked that he should be admitted upon the 
adoption, by congress, of some form of government for this region 
of country. 1 

§ 118. The constitution of the United States does not secure to 
the citizens of the federal district the right of representation in 
congress. Nor can a delegate elected from such district, by 
authority of congress, hold a seat in either house, in opposition 
to the will of such house. But a delegate, elected pursuant to a 
law of congress, may be admitted, by either house, without the 
power to vote. 3 

§ 119. The right of the people of the several states to repre- 
sentation in state legislatures would seem not only to belong to the 
people, but to be incapable of alienation by them, without an 
amendment of the federal constitution. At the time of. the adop- 
tion of the constitution each of the original thirteen states had a 
legislature composed of representatives of the people. The legis- 
lature established by the constitution for the United States was a 
representative body. It would have been impossible for the people 
of the larger states, like New York, Pennsylvania, Virginia, and 
Georgia, to dispense with representative bodies and exercise di- 
rectly their legislative powers. If this had been attempted, even 
by such small states as Rhode Island and Delaware, it would have 
proved to be impracticable, and the legislative power would have 
been exercised, in fact, by a few members of the state, who, instead 
of being chosen by, and representatives of, the people, would have 
been self-elected, and would have represented only a part of the peo- 
ple. The representative legislature, then, was, at the time of the 
adoption of the federal constitution, not only an actual element, but 
a necessary element, of the republican form of government, in the 
United States. As such it was not only recognized, but also 
practically adopted, by the constitution. In the second section of 
the first article it is declared, that, " the electors, in each state, 
shall have the qualifications requisite for electors of the most 
numerous branch of the state legislature." It is here assumed 

1 Babbit's case, 1 Bart. 116. 2 Const. U. S. art. 1, ss. 5, 8. 



91 

that the most numerous branch of each state legislature will be 
composed, not of the people themselves, but of representatives 
elected by the people. The state legislature, recognized and ap- 
proved by this clause of the federal constitution, is not only a 
representative legislature, but also, according to the weight of 
authority, a legislature composed of two, or more, branches, or 
houses. Congress has incorporated this theory of the constitu- 
tion into many legislative enactments. And yet, in the act regu- 
lating the time and manner of choosing senators of the United 
States, under the fourth section of the first article of the consti- 
tution, congress has provided that each house of the state legisla- 
ture shall vote separately for senator, at first, and that, if the same 
person shall not be chosen by both houses, the members of the 
two houses shall afterwards vote in one house or joint assembly, a 
quorum to consist of a majority of the members, not of each 
house, but of both houses. 1 

§ 120. Formerly the number of representatives, to which the 
towns of Massachusetts were entitled, in the legislature, was deter- 
mined by the number of ratable polls therein on the day of the 
election. 2 The provision of the constitution that every town, 
then incorporated, might elect one representative, whether it 
contained the requisite number of ratable polls, or not, extended 
to towns, which, by their acts of incorporation, were not allowed 
to send representatives, but, for that purpose, were united to 
other towns. 3 Under the constitution in force in the year 1811, 
it was competent for the legislature to declare who should, or 
should not, be ratable polls, on which to predicate representation 
in the legislature. 4 Where it had been the immemorial custom for 
the inhabitants of a town and the inhabitants of adjoining unin- 
corporated territory to unite, in the choice of representatives, and 
they had also been unitedly taxed for the expense of representation, 
it was held that the latter were properly enumerated among the 
ratable polls of the town, to entitle it to two members. 5 The voters 
of a town cannot determine what number of representatives to send 
to the state legislature, by voting for such number, not exceeding 
the maximum to which the town is entitled, as they shall respec-' 

: Eev. Stat. U. S. ss. 14, 15. 4 Opinion of the Justices, C. S. & J. 

2 Wade's case, C. S. & J. 293. 117. 

s Kellogg's case, id. 83. 5 Davis' case, id. 75. 



92 

tively think proper. 1 Transient persons, who went into a town a 
few days before an election, worked there, as laborers, for a few 
months, and then returned to their homes elsewhere, were held to 
be ratable polls in such town. 2 Town paupers are not ratable 
polls to be counted in fixing the number of representatives to which 
the town is entitled; 3 nor. are state paupers. 4 Under the state 
constitution in force in Massachusetts, in 1811, aliens were rata- 
ble polls when made by statute liable to be rated to public. taxes. 5 

§ 121. The constitutional provision, which subjects the terri- 
tories to the control of congress, would seem to be broad enough 
to invest the legislative branch of the federal government with 
full power to confer upon, or withhold from, the people of the ter- 
ritories the right of representation in territorial legislatures. But 
that clause of the ordinance of 1787, which secured to the people 
of the territory northwest of the Ohio river, the right to a dele- 
gate in. congress, to be chosen by the legislature of the territory, 
would be inoperative without a territorial legislature. It is therefore 
not unreasonable to construe this provision of the ordinance as a 
guaranty of the right of representation in a territorial legislature. 
This right, secured, by the ordinance of 1787, to the people of the 
territory northwest of the Ohio, was, by the terms of the cession 
of the territory south of the Ohio, and the acceptance thereof by 
congress, extended to the latter territory. 6 

§ 122. It is ordained, in the constitution, that congress " shall 
have power to exercise exclusive legislation, in all cases whatso- 
ever," 7 over the federal district. Under this provision, what 
legislative powers, if any, can be delegated by congress to a 
district legislature ? Can congress, while invested, by the consti- 
tution, with power to exercise exclusive legislation over the 
district, delegate the whole or any part of its legislative power to 
a district legislature ? Whatever legislative powers may, or may 
not, be capable of delegation, by a legislature, which, like that of 
England, embraces all the legislative powers of the nation, unre- 
stricted by a written constitution, it is plain that legislatures 
controlled by written constitutions, like those of the federal and 

1 Draper's case, C. S. & J. 157. 5 Opinion of the Justices, C. S. & J. 

2 Burrill's case, id. 171. 117. 

3 Wade's case, id. 152. 6 1 Stat. 52, 106. 

4 Minot's case, id. 141. 7 Const. U. S. art. 1, s. 8. 



93 

state governments of the United States, can only delegate such 
powers as their constitutions, justly interpreted, permit them to 
delegate. It would seem to be equally clear that a constitutional 
grant of power, to " exercise exclusive jurisdiction, in all cases," 
over the federal district, is not a grant of power to exercise a part 
of the legislative powers therein, and to delegate the residue to a 
district legislature. But there are classes of powers, lying near 
the line which separates the legislative from the administrative 
functions of government, which may be so much more advan- 
tageously exercised by cities, counties, and other municipalities, 
that they are not reckoned among those substantive legislative 
powers, which, when vested by the constitution exclusively in a 
legislative body, are incapable of delegation to any other tribunal. 
Among these are the powers to open and close streets and to fix 
and change their grade, and to provide for the construction of 
pavements, sewers, water-works and gas-works. These and similar 
powers, although, in a strict sense, legislative powers, are not 
legislative powers in such a sense that a constitutional provision, 
investing a legislature with the power of exclusive legislation over 
a designated district, will interdict their delegation to an inferior 
municipality. It is only such quasi legislative powers as these 
that congress may constitutionally delegate to a legislature of the 
District of Columbia. The mandate of the constitution can only 
be obeyed by excluding from the list of delegated powers all 
except those which, upon grounds of public convenience, long 
usage has assigned to subordinate municipalities. 

§ 123. The constitution of the United States does not guaranty 
to the people the right to elect executive, or judicial, officers, 
either for the states, or for the nation. Even the electors of 
president and vice-president may be appointed in such manner 
as the legislatures of the respective states shall direct. The 
right to electtthem, by popular vote, is not secured to the people 
by the federal constitution. All other executive and judicial 
officers of the United States are to be appointed by the president, 
by and with the advice and consent of the senate, or by the pres- 
ident alone, or by the courts, or the heads of departments. The 
states hold the unrestricted power to determine whether their 
own executive and judicial officers shall be elected by the people^ 
or otherwise appointed. 



94 

§ 124. When the state constitution provides that certain officers 
of cities, towns, and villages, " shall be elected by the electors of 
such cities, towns, and villages, or by some division thereof, or 
appointed by such authorities thereof as the legislature shall desig- 
nate for that purpose," a statute, creating a new police district, by 
adding to the city small fragments of sparsely inhabited contigu- 
ous territory, abolishing the police system of the city, and pro- 
viding for the appointment, by the governor, of officers to perform, 
in the new district, duties previously performed by officers of the 
city, chosen by the people, or appointed by the municipal author- 
ities, is unconstitutional and void. The right of local self-gov- 
ernment, secured to the several recognized civil and political 
divisions, by a constitutional provision that municipal officers 
shall be chosen by the electors of the municipality, or appointed 
by the authorities thereof, cannot be taken from them by any act 
of the legislature, or by any, or all, of the departments of the 
state government combined. Nor can this right be evaded by a 
change in the name of the office, or by a division of the office and 
assignment of its duties to two or more officers, under different 
names. The courts will scrutinize acts of the legislature, which 
deprive the people, or local authorities, of the power to elect, or 
appoint, their officers, to see that the intent of the constitution is not 
frustrated by such a mere colorable change. No civil, or political, 
division, or organization, not specified in the constitution, can be 
established by the legislature, except when none of those recog- 
nized in the constitution will answer the requirements of the public, 
or when objects essential to the public welfare cannot be accom- 
plished by organizations established under some one of the forms 
of municipal government authorized by the constitution. If the 
only object of legislation is to give the benefit of a city police to 
an inconsiderable area of contiguous territory, the end may be 
accomplished by an extension of the city limits ; there is no neces- 
sity for a new civil division ; and such new organization is uncon- 
stitutional. x 

§ 125. A statute of Indiana contained the following section : 
"The common council of any city, or incorporated town, in which 
water-works have been constructed, or are now in progress of 
construction, or extension, or where water-works shall hereafter 

1 People v. Albertson, 55 N. Y. 50. 



95 

be ordered, shall establish a board of three trustees, to be known 
as the trustees of the water-works. Such trustees shall be elected, 
at the annual city election, by the qualified voters of such city or 
incorporated town." 1 In a proceeding instituted to compel the 
municipal authorities of a city to fix the amount of the bond to 
be given by trustees elect, the supreme court held as follows: 
" The law provides for the election of the trustees absolutely, and 
not upon the condition that the board shall have been established 
by the common council. The language of the statute is that ' said 
trustees shall be elected, at the annual city election, by the quali- 
fied voters of said city,' etc. The right of the electors thus to 
elect the trustees cannot, as we think, be destroj^ed by the failure 
of the common council to discharge a merely formal duty imposed 
upon them." 2 

1 Acts Ind. 1879, 90. 2 City of Lafayette v. State, 69 Ind. 

218. 



CHAPTER VII. 



CREATION AND ABOLITION OF OFFICES. 






Secs. Secs. 



1. Public offices defined . 126,127 

2. Power to create, abolish, or 

change offices .... 128 

3. Power to prescribe the mode of 

election, or appointment . 129 

4. Power to fix the terms of offices, 130 



Power to prescribe the qualifica- 
tions of officers ; 

(1) Officers in general . . 131 

(2) Members of congress . 132-136 

(3) Territorial delegates . . 137 



§ 126. The supreme court of North Carolina has denned a pub- 
lic office as follows : "A public office is an agency for the state, 
and the person whose duty it is to perform this agency is a pub- 
lic officer. This we consider to be the true definition of a public 
officer, in its original broad sense. The essence of it is the duty 
of performing an agency, that is of doing some act, or acts, or 
series of acts, for the state. Public officers are usually required 
to take an oath, and usually a salary or fees are annexed to the 
office, in which case it is an office ' coupled with an interest.' 
But the oath and the salary, or fees, are mere incidents, and con- 
stitute no part of the office. When no salary or fees are annexed 
to the office it is a naked office, — honorary, — and is supposed to 
be accepted merely for the public good. This definition also 
excludes the idea that a public office must have continuance. It 
can make no difference whether there be but one act, or a series 
of acts, to be done, whether the office expires as soon as the one 
act is done, or is to be held for years, or during good behavior." 1 
But it has been held, in New York, that the issuing of a commis- 
sion, according to law, to a person therein named, empowering him 
to act as surrogate, in a particular case, is not an appointment to 
a "public office," within the meaning of a state constitution, pro- 
hibiting judges from exercising " any power of appointment to 
public office;" 2 that the term public office so used applies to a 
permanent public trust, or employment, to be exercised generally, 
and in all proper cases ; that it does not include the appoint- 

1 Clark v. Stanley, 66 N. C. 59. See 2 Const. N. Y. 1846, art. 6, s. 8. 

also People v. Bledsoe, 67 N. C. 457. 

96 



97 

ment of an individual, to perform transient, occasional, or inci- 
dental duties, such as are ordinarily, performed by public officers ; 
and that the legislature is at liberty to invest the courts with 
power to make such appointments. 1 

A statutory enactment, providing that "the governor, auditor, 
treasurer, superintendent of free schools, and attorney-general 
shall be and continue a corporation, under the style of the ' Board 
of Public Works,' does not operate as an appointment to a new 
office, but merely confers new powers and imposes new duties 
upon an existing office." 2 The Indiana constitution of 1851 pro- 
vided for the election of a county auditor, in each county of the 
state, 3 and required the auditor to perform such duties as should 
be prescribed by law. 4 For the auditors of certain counties no 
duties were prescribed by law. But it was held that the offices 
existed without the duties ; and that the creation, by the constitu- 
tion, of the office of county auditor, in each county, did not 
operate to revive a law prescribing the duties of the auditor of 
a certain county which had previously been repealed. 5 

§ 127. In North Carolina the trustees of the state university, 
and the directors of the penitentiary, the lunatic asylum, and the 
institution for the deaf, dumb, and blind, are public officers. 6 
Although trustees, appointed by the governor to wind up the affairs 
of a state bank> are not strictly officers, and are not amenable, as 
such, to an information in the nature of a quo warranto, they are 
to be regarded as officers, when the rights of the public and third 
persons are affected by their acts, to this extent that, in collateral 
proceedings, it is sufficient, in protection of those rights, to show 
them to be officers de facto. The rule relating to officers de facto 
applies to persons acting in a quasi public fiduciary capacity. 
An attendant of the supreme court, appointed, according to law, 
by the county supervisors, is in office, within the meaning of a 
statute prohibiting the supervisor from " increasing the salaries of 
those now in office." 8 The place of medical superintendent of a 
hospital for the insane is an office, within the meaning of a consti- 
tutional declaration that " no person shall be elected or appointed 

1 Hatha way's case, 71 N. Y. 238. 5 Jones v. Gavins, 4 Porter (Ind.) 305. 

2 Bridges v. Shallcross, 6 W. Va. 562. 6 People v. Bledsoe, 67 N. 0. 457. 

3 Const. Ind. 1851, art. 6, s. 2. 7 Golder v. Bressler, 105 111. 419. 

4 Id. s. 6. 8 Rowland •'. Mayor, 83 N. Y. 372. 

7 



98 

to any office, in this state, unless he possesses the qualifications 
of an elector." 1 An extra clerk, appointed by the tax collector, 
under the authorization of the board of supervisors, according to 
law, at a designated salary, is an officer, with a fixed salary, and 
when a demand for the salary has been presented to and allowed 
by the board, and there is money in the treasury applicable to the 
payment thereof, it is the duty of the auditor, on the presentation 
of the demand to him, to audit the same, in the manner provided 
by law. The performance of this duty will be enforced by man- 
damus. 2 Bedesmen, appointed for life, but having no duties to 
perform, are not entitled to vote in respect of an estate in land, 
coming to them by promotion to any office within 2 W. 4, c. 45, s. 
18, as the term bedesman does not necessarily import such office. 3 
A practicing physician of a county hospital, appointed, according 
to law, in pursuance of a statute prescribing his term of service, 
salary, and duties, holds a county office ; and a vacancy in such 
office is to be filled in accordance with the statutory provisions 
for filling vacancies in county offices. 4 

§ 128. Offices, which are not protected by any special constitu- 
tional provisions, may be changed, or abolished, bylaw. 5 In the 
absence of constitutional prohibitions, the legislature has power to 
terminate, at pleasure, the incumbency of a statutory office, either 
by the abolition of the office itself, or by a change in the tenure, 
or mode of appointment. 6 A statute, which provides that certain 
officers shall be abolished, in effect abolishes the offices held by 
such officers. 7 A statute, enacted in 1871, authorized the electors 
of the district to choose an additional judge of the court of com- 
mon pleas, for a term of five years. A statute, enacted in 1877, 
authorized a " second election for the additional judge," for a term 
of five years. In 1882 a proceeding in mandamus was instituted, 
without further legislation, to compel the sheriff to give notice of 
a third election. But it was held that the statutory provisions 
above mentioned did not create a permanent office, and such elec- 
tion was not authorized. 8 There is no vested right in a municipal 

J State v. Wilson, 29 Ohio St. 347. 6 Kilgore v. Magee, 85 Penn. St. 401. 

2 Enkle v. Edgar, 63 Cal. 188. 6 Kendall v. Canton, 53 Miss. 526. 

3 Faulkner v. Boddington, 3 C. B. N. S. 7 State v. Covington, 29 Ohio St. 102. 

413. 8 State v. Brown, 38 id. 344. 



People <o. Harrington, 63 Cal. 257. 



99 

office to place it above legislative control. 1 The legislature has 
power, when not prohibited by the constitution, to abolish an 
office, to increase, or reduce, its duties and salary, and to change 
the modes in which vacancies may occur, and may make such 
changes applicable to existing offices and to the persons holding 
them. 2 

§ 129. A constitutional declaration that "the election and 
appointment of all officers, and the filling of all vacancies, not 
otherwise provided for by this constitution, or the constitution of 
the United States, shall be made in such manner as may be 
directed bylaw," 3 confers upon the legislature the power to deter- 
mine whether, when it is not otherwise provided, officers shall be 
elected or appointed. 4 A constitutional provision that "the gen- 
eral assembly shall provide, by law, for the election of such county 
and township officers as may be necessary," 5 does not imply that 
city and village officers shall also be elected. 6 A statute providing 
for the election of " police magistrates," is authorized by a con- 
stitution conferring upon the legislature power to provide for the 
election of " justices of the peace," and ballots, intended for such 
officers, are to be counted, whether cast for " police magistrates," 
or for " police justices." 7 Under a statute declaring that, " it shall 
be lawful, hereafter, for the board of supervisors, in any county, at 
any annual meeting of such board, to direct, by resolution, that there- 
after only one county superintendent of the poor shall be elected, 
in and for such county, who shall hold his office for three years ; 
but in all counties, where no such resolution shall have been passed, 
three county superintendents of the poor shall be elected," 8 the 
supervisors have power only to reduce the number of super- 
intendents of the poor ; they cannot increase the number, after it 
is reduced. If, under a resolution to restore the number from one 
to three, an election be held, it will be void. 9 

§ 130. When the term of an office is limited, by the constitu- 
tion, it cannot be changed by legislation ; nor can the legislature 
enact a law which would create a vacancy. 10 When the constitu- 

1 Crook v. People, 106 111. 237. 7 People v. Matteson, 17 111. 167. 

2 Bryan v. Cattell, 15 Iowa, 538. 8 Stat. N. Y. 1847, vol. 1, p. 740, s. 1. 

3 Const. Ohio, art. 2, s. 27. 9 People v. Ames, 19 How. Pr. 551. 

4 State v. Covington, 29 Ohio St. 102. 10 Howard v. State, 10 Ind. 99 ; Deweese 
6 Const. Ohio, 1851, art. 10, s. 1. v. State, id. 343. 

6 State v. Covington, 29 Ohio St. 102. 



100 

tion fixes the period of the tenure of an office, without fixing the 
time of the commencement of the term, it is competent for the 
legislature to fix the commencement of the term. And, if an act 
of the legislature, organizing a county and providing for. the elec- 
tion of a county judge, purport to limit the tenure to a period less 
than that prescribed in the constitution, while an election held 
under the act will be valid, the officer will hold for the term pre- 
scribed in the constitution, and, upon his resignation, death, or 
removal, before the expiration of such term, the vacancy can be 
filled by the people only at a general election, and upon due proc- 
lamation by the governor. At the last general election preced- 
ing the expiration of such term, an election may be held without 
such proclamation. 1 In the absence of constitutional restrictions 
a legislature, having power to create a particular office and to 
regulate the manner of filling it and the term and duties of the 
incumbent, has the power to lengthen, or abridge, such term, or to 
declare the office vacant and appoint an officer to fill the vacancy. 2 
Under a constitution conferring upon the legislature power " to 
name and settle annually, or provide by fixed laws for the naming 
and settling all civil officers, within the said commonwealth, the 
election and constitution of whom are not hereafter, in this form 
of government, otherwise provided for," the legislature has the 
power to shorten the term of any office the tenure of which is not 
fixed by the constitution. 3 'Political powers always enure ex- 
clusively to the beneficial use of the political community, as such, 
and are revocable at the will of the government conferring them. 
A provision for the election of a mayor two years before the 
expiration of the official term of the incumbent, made in an act 
amendatory of the city charter, is valid ; and the newly elected 
mayor is entitled to immediate possession of the office, although 
the amendatory act designates no time for the commencement of 
his term. 4 Constitutional terms of constitutional offices are as 
completely beyond legislative interference, when the legislature 
has the power to fix the number of officers, as when the number 
is fixed in the organic law. 5 When a state constitution declares 

1 People v. Kosborough, 14 Cal. 181. 5 Fant v. Gibbs, 54 Miss. 396; People 

2 People v. Van Gaskin, 5 Mont. 352 ; v. Dubois, 23 111. 547 ; Commonwealth v. 
Territory v. Pyle, 1 Oregon, 149. Gamble, 62 Penn. St. 343 ; Lowe v. Com- 

3 Taft v. Adams, 3 Gray, 126. monwealth, 3 Mete. (Ky.) 237 ; State x. 

4 Alexander v. McKenzie, 2 S. C. 81. Messmore, 14 Wis. 163. 



101 

an office to be elective, it cannot be filled in any other mode than 
that prescribed in the constitution. But where an office has been 
filled, in the mode prescribed in the constitution, the term of the 
incumbent may be extended, provided the entire term, when so 
extended, does not exceed the time limited by the constitution. 
The incumbent, during the addition to his term, holds, not as the 
appointee of the legislature, but as an elected officer. 1 

§ 131. The power to prescribe the qualifications of federal 
officers, whose qualifications are not prescribed in the constitution 
of the United States, resides in congress, subject to the restric- 
tions of the constitution. The power to prescribe the qualifica- 
tions of state officers, whose qualifications are not prescribed in 
the state constitution, resides, where it is placed by the state con- 
stitution, generally in the legislature of the state, subject in like 
manner to the restrictions of the federal constitution, in which it 
is provided that all officers of the United States and of the several 
states shall be bound, by oath, or affirmation, to support the con- 
stitution, 2 that no religious test shall ever be required, as a qual- 
ification to any office, or public trust, under the United States, 3 
and that no person shall hold any office, civil or military, under 
the United States, or under any state, who, having previously 
taken an oath, as a federal or state officer, to support the consti- 
tution of the United States, shall have engaged in insurrection, 
or rebellion, against the same, or given aid or comfort to the 
enemies thereof, unless relieved of his disability by a vote of two- 
thirds of each house of congress. 4 The house of commons can 
not prescribe the qualifications of its own members. 5 The state 
legislature cannot establish arbitrary .exclusions from office, or 
any general regulations requiring qualifications which the state 
constitution has not required. 6 The mere authority to prescribe 
the qualifications of certain officers, conferred upon the legisla- 
ture by the constitution, will not, of itself, authorize the removal, 
by the legislature, of disabilities imposed by the constitution. 7 
A constitutional provision that " no person shall be elected, or 

Christy v. Supervisors, 39 Cal. 3; 4 Const. U. S. Amendments, art. 14. 

People v, Hastings, 29 id. 449 ; People 5 May Pari. Pr. 60. 

v. Kelsey, 34 id. 470. 6 Barker v. People, 3 Cow. (N. Y.) 686, 

2 Const. U. S. art. 6. 7 Morgan v. Vance, 4 Bush, 323. 



Id, 



102 






appointed, to any office, in this state, unless lie possesses the 
qualifications of an elector," 1 does not, by implication, forbid the 
legislature to require other reasonable qualifications for office. 3 

§ 132. The qualifications of representatives in congress are pre- 
scribed in the second section of the first article of the constitution 
of the United States. They are : (1) That they shall have attained 
the age of 25 years ; (2) that they shall have been seven years 
citizens of the United States ; and (3) that they shall, when elected, 
be inhabitants of those states in which they shall be chosen. No 
other qualifications are prescribed in the constitution. 

If the constitution had vested anywhere the power to prescribe 
qualifications of representatives in congress, additional to, or 
different from, those prescribed by the constitution itself, it is 
obvious that this power would have been conferred either upon 
congress, or upon the house alone, or upon the states. In the 
history of our government it has never been claimed that the house 
of representatives, acting alone, possessed the power to add to, 
or change, the qualifications of its members. The attempt, made 
in the tenth congress, 3 to vindicate a claim of that kind, in favor 
of the states, signally failed, and has never been repeated in the 
house. 

§ 133. Mr. Justice Story, in his discussion of the subject of the 
qualifications of representatives in congress, says that it would 
seem but fair reasoning, upon the plainest principles of interpre- 
tation, that when the constitution established certain qualifications, 
as necessary for office, it meant to exclude all others as prerequi- 
sites ; that, from the very nature of such a provision, the affirmation 
of these qualifications would seem to imply a negative of all others ; 
that the states can exercise no powers of the national government, 
which the constitution does not delegate to them ; that they have 
just as much right to prescribe new qualifications for a representa- 
tive as they have for a president, and no more ; that each is an 
officer of the union, deriving his powers and qualifications from 
the constitution, and neither created by, dependent upon, nor con- 
trolled by the states ; that it is no original prerogative of state power 
to appoint a representative, a senator, or president for the union ; 
that these officers owe their existence and functions to the united 

1 Const. Ohio, 1851, art. 15, s. 4. ' 3 Barney v. McCreery, C. & H. 167. 

2 State v. Covington, 29 Ohio St. 102. 



103 

voice of the whole people ; and that, before a state can assert the 
right, it must show that the constitution has delegated and recog- 
nized it ; that no state can say that it has reserved what it never 
possessed. 1 

§ 134. This subject was considered by the house of representa- 
tives in the thirty-fourth congress. 2 The tenth section of the 
fifth article of the constitution of the state of Illinois, which was 
adopted on the sixth day of May, 1848, provided that the judges 
of the supreme and circuit courts should not be eligible to any 
other office, or public trust, of profit in that state, or the United 
States, during the term for which they were elected, nor for one 
year thereafter ; that all votes for either of them for any elective 
office (except that of judge of the supreme or circuit court), given 
by the general assembly, or the people, should be void. 

The contestants in these cases claimed the right to seats in the 
thirty-fourth congress solely upon the ground that the votes cast 
for Messrs. Marshall and Trumbull, respectively, " were null and 
void,'' not because of any disqualification in the electors who thus, 
voted, but because Mr. Marshall had been elected a circuit judge, 
and Mr. Trumbull a supreme judge, within the state of Illinois, 
each for a term of years which had not expired at the time of the 
congressional election. It was contended that this presented the 
question whether a state could superadd to the qualifications pre- 
scribed for representatives in congress by the constitution of the 
United States. 

The committee of elections, having shown that the qualifications 
of a representative under the constitution are, that he shall have 
attained the age of twenty-five years, shall have been seven years 
a citizen of the United States, and, when elected, an inhabitant of 
the state in which he shall be chosen, declare that it is a fair pre- 
sumption that when the constitution prescribed these qualifications 
as necessary to a representative in congress, it was meant to 
exclude all others. And they conclude that it is equally clear 
that a state of the union has not the power to superadd qualifica- 
tions to those prescribed by the constitution for representatives, 
has not the power to take away from the people of the states the 
right given them by the constitution to choose, every second year, 

1 Story Const, ss. 625, 627. 2 Fouke v. Trumbull, Turney v. Mar- 

shall, 1 Bart. 168. 



104: 

as their representative in congress, any person who has the 
required age, citizenship, and residence ; that to admit such a 
power in any state is to admit the power of the states, by a legis- 
lative enactment or a constitutional provision, to prevent alto- 
gether the choice of a representative by the people ; that the 
assertion of such a power by a state is inconsistent with the suprem- 
acy of the constitution of the United 'States, and makes void the 
provision that that constitution shall be the supreme law of the 
land, anything in the constitution or laws of any state to the con- 
trary notwithstanding. They submit that the position assumed 
by those who claim for the states this power, that its exercise in 
no way conflicts with the constitution, or the right of the people 
under it, to choose any person having the qualifications therein 
prescribed, has no foundation in fact ; that by the constitution 
the people have a right to choose, as representative, any person 
having only the qualifications therein mentioned without super- 
adding thereto any additional qualifications whatever ; that a power 
to add new qualifications is certainly equivalent to a power to 
vary or change them ; and that an additional qualification imposed 
by state authority would necessarily disqualify any person who 
had only the qualifications prescribed by the federal constitution. 
The report of the committee was adopted. 

§ 135. To the act of July 2, 1862, which prescribed the oath 
of office known as the iron-clad oath, 1 it was objected in the senate 
that it virtually prescribed, in violation of the constitution, a new 
qualification for senators and representatives in congress. But 
the reasons urged in support of this enactment embraced no claim 
or pretence that congress had any constitutional power to fix or 
alter the qualifications of senators or representatives otherwise 
than as a punishment for crime after trial, conviction, and sentence 
according to law. 2 

1 Rev. Stat. 1756. mit this substitute to be printed. The 

2 Cong. Gl. 41 Cong. The debate on point that strikes me in it is this : that 
this bill in the house of representa- it affords no opportunity for repentance. 
tives covers little more than a column Men may have gone into the rebel ser- 
of the Globe. It contains no allusion vice and may have since returned to 
to the constitutional question suggested. their allegiance, and yet it is proposed 
The bill having been reported by the to render them for ever ineligible to hold 
chairman of the committee on the judi- any office under the government of the 
ciary, Mr. Phelps, of Missouri, said : "I United States." 

hope the gentleman from Iowa will per- It appears that this important bill was 



105 

§ 136. It was provided, in the constitution of the state of Illinois, 
as already stated, that the judges of the supreme and circuit courts 



not even printed before it first passed 
the house. 

The chairman of the judiciary commit- 
tee replied as follows : " The substitute 
reported is not so severe as the original 
section embraced in the amendment of- 
fered by the gentleman from Tennessee. 
The substitute applies only to persons 
who have voluntarily engaged in this re- 
bellion. That exception was made in the 
section of the amendment offered by the 
gentleman from Tennessee. Now, sir, 
the sole object of this bill is to keep out 
of office under the government of the 
United States men who have taken up 
arms against the United States, and who 
have endeavored to destroy the govern- 
ment under which we live. I do not 
believe in repentance coming to men of 
this kind, who have used the official posi- 
tions they have held heretofore for the 
purpose of overturning the government. 
I believe we ought to legislate in some 
degree against this rebellion. We have 
not been able to pass any thorough con- 
fiscation or emancipation act, or any- 
thing of the kind. This bill is very plain 
in its provisions ; and for the purpose 
of determining whether the house is 
disposed to enact any measure which 
shall deal with those rebels as they 
should be dealt with, I demand the pre- 
vious question on the third reading of 
the bill." The bill was immediately 
passed. 

The chairman of the judiciary com- 
mittee of the senate took charge of the 
measure in that body. Senators Sauls- 
bury, Davis, and Carlisle raised the ques- 
tion whether the bill did not involve an 
unconstitutional attempt to prescribe 
additional qualifications for senators and 
representatives in congress. The point 
was presented on the thirteenth of June, 
1862, by Mr. Davis, in this form: He 
said that there were certain qualifica- 



tions necessary to make a man eligible 
to a seat in the senate or house of rep- 
resentatives ; that these qualifications 
could not be enlarged by an act of con- 
gress ; could not be diminished by an act 
of congress ; that whenever any citizen 
came up to the constitutional rule and 
measure, he was entitled to a seat, if he 
was elected, according to the forms of 
the constitution ; and that congress, by 
prescribing another oath for him to take, 
different from that which the constitu- 
tion prescribes, or by adding to the qual- 
ifications of a member of either house, 
could not place a single obstacle in the 
way of his taking his seat. 

Mr. Davis referred to repeated de- 
cisions of the two branches of the 
legislature of Kentucky, to the effect 
that the qualifications of members of 
the legislature, which were fixed by the 
state constitution, could not be changed 
by a statutory provision imposing an 
oath against duelling upon members, 
as a condition for admission to the 
legislature. The chairman, in reply, said 
that a law of the state of New York, pro- 
viding that persons convicted of a certain 
offence should hold no office in that 
state, had been adjudged constitutional 
by the courts. He referred to the case 
of Barker v. The People, 3 Cow. 686. 
Mr. Saulsbury stated that the constitu- 
tion of Alabama prescribed the qualifica- 
tions of attorneys at law in that state, 
and that an act of the legislature provid- 
ing that duellists should not practice as 
attorneys in the courts of that state, was 
adjudged unconstitutional and void. 
This was the substance of the whole ar- 
gument on this point in the senate. 

The chairman's real vindication of the 
measure was presented in the following 
words : 

" Now, sir, having replied to these 
suggestions, which I think are unten- 



106 

should not be eligible to any other office, of public trust, or profit, 
in that state, or of the United States, during the term for which they 



able, I will state what I think the object 
of this bill is. It is to prevent persons 
who have been engaged in rebellion 
from hereafter holding office under the 
government, by requiring that they 
shall take an oath specifically stating 
that they have not been engaged in 
armed hostility against this government 
voluntarily. I think we had better pass 
such a bill as that. I know my friend 
from Kentucky, and should hope my 
friend from Delaware, does not wish any 
persons to exercise official duties under 
this government who have voluntarily 
waged war against it. I never wish to 
see a person admitted as a senator or a 
representative who has voluntarily taken 
up arms to fight against this govern- 
ment ; and if I can prevent it, no such 
man ever shall have a seat in this body, 
or in the other, or hold any office of 
honor, profit, or trust under this govern- 
ment." 

Ten days later, on the twenty-third of 
June, 1862, the consideration of the bill 
was resumed in the senate, and it was, 
after a short debate, so amended as not 
to apply to the vice-president, or to sen- 
ators or representatives in congress, or 
to any other officers for whom an oath 
of office is prescribed in the constitution 
of the United States. And the bill thus 
amended was passed by the senate on 
the same day. But the conference com- 
mittee on this bill struck out the amend- 
ment, and their report was finally adopt- 
ed without debate in the senate. The 
grounds upon which this law was vindi- 
cated, although not stated with much 
care and precision, are nevertheless 
clearly enough disclosed by the debates. 
It was enacted as a war measure. The 
iron-clad oath was adopted as the coun- 
tersign which should, in time of war, ex- 
clude domestic enemies from the civil 
administration of the government, in the 
same manner and for the same reason 
that the military countersign was em- 
ployed to exclude those enemies from 
the military lines of the army. It was 



enacted as a measure of defence against 
an armed enemy in time of war, and was 
as necessary and as justifiable as any 
other war measure not specifically mark- 
ed out in the text of the constitution. 

An examination of the case of Barker 
v. The People, will show that it was not 
an authority of much weight in favor of 
the constitutionality of the oath of office 
act. Barker was indicted and tried in 
the city of New York, in 1822, for send- 
ing a challenge to fight a duel, under the 
statute of November 5, 1816, which pro- 
vided that any person who should engage 
in duelling should be deemed guilty of 
a public offence, and, being convicted 
thereof, should be incapable of holding 
or being elected to any post of profit, 
trust, or emolument, civil or military, 
under that state. The jury found him 
guilty, and the judgment of the court 
was that, " for the offence aforesaid, as 
charged in the first, second, third, and 
fourth counts of the said indictment 
whereof he is convicted, he be incapable 
of holding or being elected to any post 
of profit, trust, or emolument, civil or 
military, under the state of New York." 

The state constitution, in force at the 
time of the passage of the act of No- 
vember 5, 1816, was that which was 
adopted on the twentieth of April, 1777. 
The only provisions which it contained 
touching the subject of qualifications for 
office were these : that chancellors and 
judges of the supreme court should, 
during their terms of office, hold no 
other office except that of member of 
congress ; that the first judges of the 
county courts should in like manner 
hold no other office, except that of state 
senator or member of congress ; that 
sheriffs and coroners should not hold 
their offices for more than four years in 
succession ; that sheriffs should, during 
their official terms, hold no other office ; 



107 

were elected, nor for one year thereafter, and that all votes 
for either of them, for any elective office, except that of judge of 



that ministers of the gospel and priests 
should be ineligible to office : that the 
town clerks, supervisors, assessors, con- 
stables, and collectors, and all other 
officers then eligible by the people, 
should always continue to be so eligi- 
ble, in the manner directed by the ex- 
isting or future acts of legislature ; that 
no member of the state should be dis- 
franchised or deprived of any of the 
rights or privileges secured to the sub- 
jects of the state by that constitution, 
unless by the law of the land or the 
judgment of his peers. 

The chancellor pronounced the judg- 
ment of the court of errors. 

He cited the first section of the act of 
the fifth of November, 1816, to suppress 
duelling, which prescribes that " the per- 
sons convicted shall be incapable of hold- 
ing or being elected to any post of profit, 
trust, or emolument, civil or military, 
under this state :" and he said the objec- 
tion then made was that this punishment 
was inconsistent with the constitution. 

Eligibility to office, he said, was not de- 
clared as a right or principle by any ex- 
press terms of the constitution ; but it 
resulted as a just deduction from the 
express powers and provisions of the 
system. The basis of the principle was 
the absolute liberty of the electors and 
the appointing authorities to choose and 
appoint any person who was not made 
ineligible by the constitution. Eligi- 
bility to office, therefore, belonged not 
exclusively or specially to electors en- 
joying the right of suffrage. It belonged 
equally to all persons whomsoever not 
excluded by the constitution. He there- 
fore conceived it to be entirely clear that 
the legislature could not establish arbi- 
trary exclusions from office, or any gen- 
eral regulation requiring qualifications, 
which the constitution had not required. 
If, for example, it should be enacted by 



law that all physicians, or all persons of 
a particular religious sect, should be in- 
eligible to public trusts, or that all per- 
sons not possessing a certain amount of 
property should be excluded, or that a 
member of the assembly must be a free- 
holder, any such regulation would be an 
infringement of the constitution ; and it 
would be so because, should it prevail, 
it would be, in effect, an alteration of 
the constitution itself. 

But the question before the court was 
not at all of this character. The legis- 
lature had made no such general regu- 
lation. They had prescribed that inca- 
pacity to hold public trust should be the 
punishment of a particular crime ; and 
the question was, whether they had 
power to prescribe such incapacity or 
not. The power of the legislature in the 
punishment of crimes he held not to be 
a special grant or a limited authority to 
do any particular thing or to act in any 
particular manner. It was a part of 
"the legislative power of this state," 
mentioned in the first section of the con- 
stitution. It was the sovereign power of 
a state to maintain social order by laws 
for the due punishment of crimes. It was 
a power to take life and liberty, and all 
the rights of both, when the sacrifice was 
necessary to the peace j order, and safety 
of the community. This general au- 
thority was vested in the legislature : 
and, as it was one of the most ample of 
their powers, its due exercise was among 
the highest of their duties. When an of- 
fender was imprisoned, he was deprived 
of most of the rights of a citizen ; and 
when he suffered death, all his rights 
were extinguished. The legislature had 
power to prescribe imprisonment or death 
as the punishment of any offence. The 
rights of a citizen were thus subject to 
the power of the state in the punishment 
of crimes ; and the restrictions of the 



108 

the supreme, or circuit, court, given by the general assembly, or 
people, should be void. Lyman Trumbull, having been elected 



constitution upon this, as upon all the 
general powers of the government, were 
that no citizen should be deprived of his 
rights, unless by the law of the land or 
the judgment of his peers ; and that no 
person should be deprived of life, liberty, 
or property without due process of law. 

The power of the state over crimes was 
thus committed to the legislature, with- 
out a definition of any crime, without a 
description of any punishment to be 
adopted or to be rejected, and without 
any direction to the legislature concern- 
ing punishments. It was, then, a power 
to attain the end by adequate means ; 
a power to establish a criminal code, 
with competent sanctions ; a power to 
define crimes and prescribe punishments 
by laws in the discretion of the legisla- 
ture. 

But though no crime was defined in the 
constitution, and no species of punish- 
ment specially forbidden to the legis- 
lature, yet there were numerous regula- 
tions of the constitution which must 
operate as restrictions upon this general 
power. A law which should declare it 
a crime to exercise any fundamental 
right of the constitution, as the right of 
suffrage or the free exercise of religious 
worship, would infringe an express rule 
of the system, and would therefore not 
be within the general power over crimes. 

A law enacting that a criminal should, 
as a punishment for his offence, forfeit 
the right of trial by jury, would con- 
travene the constitution, and a depriva- 
tion of this right could not be allowed 
in the form of a punishment. 

But while many rights were conse- 
crated as universal and inviolable, the 
right of eligibility to office was not so 
secured. It was not one of the express 
rules of the constitution, and was not 
declared as a right, or mentioned in 
terms as a principle, in any part of the 



instrument. Important as this right was, 
it stood, as the right to life itself stood, 
subject to the general power of the leg- 
islature over crimes and punishments. 
As a right flowing from the constitution, 
it could not be taken away by any law 
declaring that classes of men, or even a 
single person, not convicted of a public 
offence, should be ineligible to public 
stations ; but as a right not expressly 
secured by the constitution, it might be 
taken from convicted criminals when the 
legislature, in their plenary power over 
crimes, deem such a deprivation a neces- 
sary punishment. 

To say this was to say in substance 
that the right in question might be for- 
feited by crimes when the legislature 
shall so direct. If this right was taken 
from none but malefactors, in punish- 
ment for offences declared by law, and 
ascertained in the due course of jus- 
tice, the sense of the whole constitution 
was maintained. And, he added, that 
as the authority of each house of the New 
York legislature was exclusive and su- 
preme in all questions concerning the 
qualifications of its own members, if 
either house should consider such a qual- 
ification unconstitutional, or, for any 
reason whatever, should disapprove it, 
the opposition of the house would pre- 
vail in respect to the seat and rights of 
a member declared ineligible by the 
courts ; that the disqualification pro- 
nounced by the courts would fail to pro- 
duce an exclusion from the legislature, 
but it would, nevertheless, be effectual 
to exclude from all other public stations ; 
that its effect, in respect to all other 
public employments, would be deter- 
mined by the courts. 

This decision is not an authority for r 
the position that the house of represent- 
atives, in the exercise of its power to 
judge of the elections, returns, and qaul- 



109 

• 
9 on the 7th and commissioned on the 24th day of June, 1852, a 
justice of the supreme court of that state, for a term of nine years, 
commencing on the first Monday of June, 1852, communicated to 
the governor, on the 19th of May, 1853, his resignation, to take 
effect on the 4th of July, 1853. On the 8th of February, 1855, he 
was elected a senator of the United States, by the legislature of 
Illinois. Forty -two members of the legislature addressed to the 
senate of the United States their protest against the election, 
insisting that the votes cast for Mr. Trumbull were null and void. 
But the senate decided that the people of Illinois could not add 
to the qualifications of a senator prescribed in the constitution of 
the United States, and, by a vote of 35 to 8, affirmed Mr. Trum- 
bull's right to the seat. 1 

§ 137. The house of representatives of the forty-second congress 
considered the question whether the constitutional provisions 
prescribing the qualifications of representatives in congress are 
applicable to territorial delegates. On the one hand, it was claimed 
that those provisions did not purport to be applicable to delegates 
from territories, but only to representatives from states ; that the 
territories, which were held by the United States, at the time of 
the adoption of the constitution, were subjected, by that instru- 
ment, to the absolute control of congress, without restraint, in the 
constitution, or elsewhere ; that the constitution did not purport 
to invest congress with any power in territories acquired after its 
adoption, and as to those its power was held as " an inevitable 
consequence of the right to acquire territory," as asserted by the 
majority of the supreme court of the United States in the case of 
Dred Scott. In opposition to this view it was maintained that, 
while the relation of the constitution to the territories was not 
identical, in character, with its relation to the states, it was clear 
that the power of congress over the territories was subordinate to 
the constitution, if that power originated in the constitution ; for 
a power born of the constitution must live by the constitution ; 
that congress possessed no power over any of the territories, which 

ifications of its members, may, by a mere except after conviction had, and judg. 

majority vote, exclude a member elect ment of disqualification actually ren- 

charged with, but not convicted of, dered, according to law. 

crime. The doctrine of the case is that 1 Trumbull's case, 1 Bart. 618. 
the house cannot so exclude a member, 



110 

• 

did not originate in the constitution ; that the power of congress 
over territory acquired after the adoption of the federal constitu- 
tion rested, as asserted in the dissenting opinion in the case of 
Dred Scott, upon the constitution, — not upon its letter, but upon 
its spirit, and was limited by its prohibitions ; and that it was, in 
any event, competent for congress to extend the provisions of the 
constitution over the territories as statutory, if not as constitutional, 
law. 1 



1 Maxwell v. Cannon, Smith, 182. 
In their report the committee of elec- 
tions said : 

" It being conceded that the contestee 
has these qualifications, one other inquiry 
only under this head remains, to wit : 
Does the same rule apply, in consider- 
ing the case of a delegate as of a mem- 
ber of the house ? This question seems 
not to have been raised heretofore. The 
act organizing the territory of Utah, ap- 
proved September 9, 1850, enacts that 
the constitution and laws of ,the United 
States are hereby extended over, and de- 
clared to be in force in, said territory of 
Utah, so far as the same or any provi- 



sion thereof, may be applicable. It was 
said, on the argument, that the constitu- 
tion cannot be extended over the terri- 
tories, by act of congress, and the views 
of Mr. Webster were quoted in support 
of this position. 

" We do not deem it necessary to con- 
sider that question, because it will not 
be denied that congress had the power to 
make the constitution a part of the 
statutory law of the territory as much 
as any portion of the organic act thereof. 
For the purposes of this inquiry it makes 
no difference whether the constitution is 
to be treated as constitutional or statu- 
tory law. If either, it is entitled to be 
considered in disposing of this case." 



CHAPTEE VIII. 



QUALIFICATIONS OF OFFICERS. 



1. Citizenship. 

(1) In general . . . .138 

(2) President, vice-president, sen- 

ators, representatives, and 
delegates . . . 139,140 

2. Residence. 



Secs. Secs. 

(1) President, vice-president, and 
members of congress . 141-144 

(2) Members of state legisla- 
tures . 145-150 

(3) Other officers . .151, 152 
3. Other qualifications . . 153-155 



§ 138. In the absence of constitutional, or statutory, modifica- 
tions of the common law, aliens, whether naturalized or not, are 
not eligible to office. 1 An alien, who is not an elector, can 
not hold office in Wisconsin ; but an alien, who becomes an elector, 
after election to office, and before qualification, can hold office. 2 
In 1848, Mitchell, a native British subject, was convicted of felony, 
in Ireland, and sentenced to transportation for fourteen years. 
But he escaped, and did not undergo the entire sentence ; nor did 
he receive a pardon. In 1853 he was naturalized as a citizen of 
the United States, and, in 1875, was elected to the British parlia- 
ment. It was held that he was disqualified from being a member 
of the house, by his conviction of felony, and also by his foreign 
naturalization, and that, the electors who voted for him having 
had notice of these disqualifications, their votes were thrown away, 
and the minority candidate elected. 3 Under the provisions of 
several charters the sheriffs of Norwich were to be chosen by the 
citizens and commonalty " from themselves." A subsequent charter 
confirming former privileges, and regulating the time and mode of 
electing sheriffs, omitted the words " from themselves." The 
usage, however, both before and afterwards, had been to elect 
from among the freemen. It was held that the last charter was 
not meant to vary the qualification, and that the restriction in the 
former charters could not be dispensed with. 4 

1 Walther v. Rabolt, 30 Cal. 185 ; Rex ? State v. Smith, 14 Wis. 497 ; State v. 

«. De Mierre, 7 Burr. 2,778 ; 1 Bac. Abr. Murray, 28 id. 96. 

B. 200, n.; 1 Black. Com. 374 ; Dorst v. s Morton v. Scully, 9 Ir., R. C. L. 217. 

Beecker, 6 John. 332 ; Searcy v. Grow, 4 Rex v. Grout, 1 B. and Ad. 104. 

15 Cal. 117. 

Ill 



112 

The constitution of Indiana contained these provisions : " Every 
white male, of foreign birth, of the age of twenty-one years and 
upwards, who shall have resided in the United States one year, and 
shall have resided in this state during the six months immediately 
preceding such election, and shall have declared his intention to 
become a citizen of the United States, conformably to the laws of 
the United States on the subject of naturalization, shall be entitled 
to vote in the township or precinct where he may reside." 1 " No 
person shall be elected or appointed, as a county officer, who shall 
not be an elector of the county." 2 It was held under these pro- 
visions, that an unnaturalized foreigner, who had resided in the state 
during the six months preceding an election, and had duly declared 
his intention to become a citizen of the United States, and was 
therefore a qualified voter, was also eligible to the office of town- 
ship trustee. 3 A constitutional requirement that county officers 
shall be inhabitants of the county is not a requirement that they 
shall be citizens of the county. 4 Citizenship is not a qualification 
for state officers in all the states. 

§ 139. " No person, except a native citizen, or a citizen of the 
United States at the time of the adoption of this constitution, 
shall be eligible to the office of president." 5 "No person, con- 
stitutionally ineligible to the office of president, shall be eligible 
to that of vice-president of the United States." 6 "No person 
shall be a representative who shall not have * * been seven 
years a citizen of the United States." 7 "No person shall be a 
senator, who shall not have * * been nine years a citizen of 
the United States." 8 The constitution does not by express pro- 
vision make citizenship a qualification for any other federal offices. 
It is provided by statute that " the delegate to the house of rep- 
resentatives, from each of the territories of Washington, Idaho, 
and Montana, must be a citizen of the United States." 9 In all 
the territories, " the right of suffrage and of holding office shall 
be exercised only by citizens of the United States above the age 
of twenty-one years, and by those above that age who have de- 

1 Const. Lid. 1851, art. 2, s. 2. 5 Const. U. S. art. 2, s. 1. 

2 Id. art. 6, s. 4. 6 Amend. Const. U. S. art. 12. 
3 Mc0arthy v. Froelke, 63 Ind. 507. 7 Const. U. S. art. 1, s. 2. 

4 State v. Kilroy, 86 id. 118; Smith 8 Id. s. 3. 

v. Moody, 26 id. '299; McCarthys. 9 Rev. Stat. 1906. 

Froelke, 63 id. 507. 



113 

clared on oath, before a competent court of record, their intention 
to become such, and have taken an oath to support the constitu- 
tion and government of the United States. 1 

§ 140. William Smith, a minor, was sent from the colony of 
South Carolina, of which his ancestors were the first settlers, to 
Europe, for his education, in 1770. His father died five months 
after his departure. His mother had died in 1760. In 1778 he 
went from Geneva to Paris, where he resided two months, as an 
American. In January, 1779, he attempted to return home, but 
failed. In January, 1782, he sailed for America, having studied 
law, until that time, in England, but not having taken any oath of 
allegiance to Great Britain. He was shipwrecked and did not 
reach South Carolina until 1783. After his return he was elected 
to the legislature, the privy council, and other public offices, and 
in 1788, to congress. During his absence he had guardians and 
an estate in South Carolina. His seat, in the house, was contested 
on the ground that he had not been, for seven years, a citizen of 
the United States. The house decided that he was eligible under 
the constitution. 2 

The election of a person to be a senator of the United States, who 
has not been, for a period of nine years, a citizen of the United 
States, is void. 3 Albert Gallatin, born in Switzerland, arrived in 
Boston in 1780. In the same year he removed to Maine. In 1781 
he returned to Boston, and in 1782 was appointed an instructor in 
Harvard University, where he remained one year. In July, 1783, he 
removed to Pennsylvania, and in November, 1783, he went to Vir- 
ginia, where he had, between July and November, 1783, purchased 
1,000 acres of land. In October, 1785, having purchased other land 
in Virginia, he took the oath of allegiance to that state. In 1789 he 
was elected a member of the constitutional convention of Penn- 
sylvania, and in 1790, 1791, and 1792, he was chosen to the legisla- 
ture of that state. In 1793 he was chosen United States senator 
from Pennsylvania. By a vote of 14 to 12 it was "Resolved, That 
the election of Albert Gallatin to be a senator of the United States 
was void, he not having been a citizen of the United States for 
the term of years required as a qualification to be a senator of 
the United States." 4 

^ev. Stat. 1860. Shields' case, 1 Bart. 606. 

3 Ramsay v. Smith, C. & H. 1. 4 Gallatin's case, G. & H. 851. 

8 



114 

On the 23d of February, 1870, the credentials of senator elect 
Revels, for the unexpired term ending March 4, 1871, were pre- 
sented. Objection was made to the election of Mr. Revels, on the 
grounds that he was of African descent, and, although born in the 
United States, had not been a citizen of the United States for a 
period of nine years preceding his election, and that his creden- 
tials, being signed by Adelbert Ames, brevet major-general, United 
States army, provisional governor of Mississippi, were not such as 
the act of July 25, 1866, required ; but the senate overruled the 
objection, by a vote of 48 to 8. 1 

§ 141. One of the qualifications prescribed by the constitution, 
for the offices of president, and vice-president, is a residence of 
fourteen years within the United States. 2 Representatives and 
senators must be inhabitants of the states in which they are 
chosen. 3 Residence is not expressly prescribed, in the constitu- 
tion, as a qualification for any other federal office. The qualifi- 
cations of state officers, as to residence, are determined by state 
laws and constitutions. Stanley Griswold had resided in Ohio, 
from September, 1808, until May, 1809, when he was appointed, 
by the governor of that state, to fill a vacancy in the United States 
senate. The senate decided that the governor's certificate, that 
Mr. Griswold was a citizen of Ohio, was sufficient, on the question 
of his inhabitancy, and that he was entitled to his seat. 4 Phillip 
B. Key, a native of Maryland, resided in the District of Columbia 
from 1801 to 1806. Early in 1806 he publicly declared his inten- 
tion to become a resident of Montgomery county, Maryland. In 
the summer of 1806 he erected a dwelling-house in that county, 
on land purchased in 1806, and on the 20th of September of the 
same year moved into it, with his family. At an election held on 
the 6th of October, 1806, he was chosen a representative of that 
congressional district. On the 20th of October, 1806, he returned, 
with his family, to the District of Columbia. On the 28th of July, 
1807, he returned to his house in Montgomery county, and on the 
22d of October, 1807, again returned to the District of Columbia. 
The committee held that Mr. Key was an inhabitant of Maryland, 
in the sense of the constitution, at the time of the election. 5 

levels' case, Taft, 312. 4 Griswold's case, Taft, 94. 

2 Const. U. S. art, 2, s. 1; Amend. 5 Key's case, C. & H. 224. The house 
const. U. S. art. 12. confirmed Mr. Key's title to the seat, by 

3 Id. art. 1, ss. 2, 3. a vote of 57 to 52. 



115 

§ 142. In the case of senator Aclelbert Ames, of Mississippi, the 
committee on the judiciary reported, 1 in substance, as follows: 
Mr. Ames was born in Maine, in 1835, and resided, with his 
parents, in that state, until 1856, when he entered the military 
academy, at West Point. He remained in the military service 
until he resigned his commission, after the bill, declaring Missis- 
sippi entitled to representation in congress, had passed the two 
houses, but before it was approved by the president. Until 1862 
his parents continued to reside in Maine ; but such of his prop- 
erty and papers as are usually kept at a man's home remained at 
his father's house. In 1862 his parents removed to Minnesota, 
carrying with them his effects, and in subsequent years he occa- 
sionally revisited Maine, but owned no land, and occupied no 
habitation of his own, in that state. In 1868 he was ordered to 
Mississippi ; on the 15th of June, in that year, he became provi- 
sional governor, by appointment of General McDowell, then dis- 
trict commander, and in March, 1869, he became himself district 
commander, by assignment of the president of the United States. 

The only material question in the case was the question of his 
legal residence. Not long before the general election Mr. Ames 
determined to permit himself to be a candidate for the office of 
United States senator. Having reached this determination, and 
in connection with it, he declared his intention in regard to his 
future residence. His statement to the committee, respecting his 
declarations and acts, was in the following words : " Upon the 
success of the republican ticket, in Mississippi, I was repeatedly 
approached to become a candidate for the United States senate. 
For a long time I declined — I wrote letters declining. A number 
of persons in Mississippi visited this city, to find arguments by 
which I might be influenced to become a candidate. I hesitated 
because it would necessitate the abandonment of my whole mili- 
tary life. Finally, for personal and public reasons, I decided to 
become a candidate and leave the army. My intentions were 
publicly declared and sincere." [The intentions thus declared were 
not only to become a candidate for the senate, but to remain and 
reside in Mississippi.] " I even made arrangements, almost final 
and permanent, with a person to manage property I intended to 
buy. This was before I left Mississippi. My resignation was 

1 March 18, 1870. 



116 

accepted by the president, before he signed the bill to admit the 
state." The conclusion of the committee, upon these facts, was 
that Mr. Ames was not, when elected, an inhabitant of the state 
of Mississippi, and was not entitled to the seat. 1 

§ 143. John Bailey, while a clerk in the state department, at 
Washington, where he had resided, as such clerk, for six years, 
was elected a representative from Massachusetts, in the congress 
of the United States, September 8, 1823, and remained in Wash- 
ington until he resigned the office of clerk, October 21, 1823. 
Certain electors of his district protested against his admission to 
the house. Mr. Bailey contended that the constitutional provisions, 
making inhabitancy a qualification for office, ought to be liberally 
construed in favor of the people's choice, because the British sys- 
tem of representation by non-residents, which suggested these 
expedients, was impossible in the United States ; that such liberal 
construction was peculiarly proper in relation to the District of 
Columbia, because the district was subject to the exclusive legis- 
lation of congress, a body which was the legislature for Massa- 
chusetts as well as the District of Columbia, and was, in a certain 
sense, a part or appendage of every state in the union ; that the 
fact that no other person claimed the seat was another reason for 
a liberal construction of the provisions, and a further reason was 
to be found in the clandestine and novel character of the opposi- 
tion ; that the question whether he was an inhabitant of Massa- 
chusetts depended on the question whether his residence, in 
Washington, was intended by himself to be permanent, or only 
temporary, and he solemnly claimed that it had always been his 
intention to continue an inhabitant of Massachusetts ; that, in 
principle, his case was not different from that of an ambassador 
of the United States in a foreign country ; that Mr. Hichborne 
had returned from Europe, after an absence of several years on 

1 Ames' case, Taft, 317. The senate Patterson, Pomeroy, Pool, Kamsey, Rev- 
resolved that Mr. Ames was eligible to els, Rice, Ross, Scott, Sherman, Spencer, 
the seat by the following vote : Yeas, Stewart, Sumner, Thayer, Tipton, War- 
Messrs. Abbott, Brownlow, Cameron, ner, Williams, and Wilson; 40. Nays, 
Cattell, Chandler, Cole, Corbett, Cragin, Messrs. Bayard, Carpenter, Casserly, 
Drake, Fenton, Flanagan, Gilbert, Ham- Conkling, Davis, Edmunds, McCreery, 
ilton of Texas, Hamlin, Harris, Howard, Norton, Pratt, Schurz, Trumbull, and 
Howe, Howell, McDonald, Morrill of Vickers; 12. 
Maine, Morrill of Vermont, Nye, Osborn, 



117 

private business, and was elected to the senate of Massachusetts, 
in 1802, long before the expiration of the five years of inhabitancy 
required, for that office, under the laws of that state ; that the 
sitting member himself, after residing several years, as an instructor 
in a college, in Rhode Island, returned to his native town in Octo- 
ber, 1814, and was chosen a representative in the legislature in 
May, 1815, although the statute prescribed for the office an inhab- 
itancy of one year ; that a member of the congress then in session 
held his seat uncontested, although he had been elected while re- 
siding in Spain, as minister of the United States, and had been a 
resident of that country for several years previous to the election, 
and his family had been residents of the District of Columbia, 
for the first two years of that period, and of Spain, for the re- 
mainder ; that the practice of the government, the constitutions 
and laws of the states, and the opinion of the most experienced 
statesmen, concurred in support of the doctrine that public em- 
ployment, at Washington, did not destroy inhabitancy previously 
acquired elsewhere; that, under the constitution, inhabitancy 
differed from actual residence, and the doctrine that inhabitancy, 
in the sense of the constitution, was the mere fact of living at a 
place, was hostile to all authorities and precedents ; and that this 
doctrine would, of course, render ambassadors ineligible, since 
they could not live at once abroad and at home. 

But the committee held that a person, who had resided six 
years in the District of Columbia, in the capacity of a clerk in the 
department of state, was not an inhabitant of a state, in the sense 
of the constitution, so as to be eligible to a seat in the house of 
representatives ; that the word inhabitant comprehended a simple 
fact, locality of existence ; the word citizen a combination of civil 
privileges, some of which might be enjoyed in any of the states 
of the union ; that the case differed, in principle, from that of a 
citizen of one of the states, who represented the government, as 
ambassador, or agent, in a foreign country ; that it was immaterial 
whether the person had, or had not, an intention to return to the 
state in which he was elected ; that the peculiar nature of the 
government of the District of Columbia did not affect the case ; 
that the suggestion that, inasmuch as the United States had ex- 
clusive jurisdiction over the district, each state might be considered 
as possessing a part, and that, although a person, formerly a citi- 



118 

zen of Massachusetts, might be a resident here, yet he was not 
out of the jurisdiction of his own state, was unsound ; that the 
sitting member's claim that his domicile, at the time of his elec- 
tion, was his father's house in Massachusetts, was untenable, 
because he had married and became himself the head of a family, 
in the District of Columbia. 1 

§ 144. It appeared that John Forsyth was elected a represent- 
ative in congress, during the period of his residence near the 
court of Spain, in the character of minister plenipotentiary from 
the United States. The committee were of the opinion that there 
was nothing in his case to disqualify him from holding a seat in 
the house ; that the capacity, in which he acted, excluded the 
idea that, by the performance of his duty abroad, he ceased to be 
an inhabitant of the United States ; and that, inasmuch as he had 
no habitancy in any part of the union other than Georgia, he was 
to be considered as in the same situation as before the acceptance 
of the appointment. 2 A representative elect, having been a 
citizen and freeholder of Virginia, for more than twenty-five 
years, and, for most of that time, a resident and inhabitant of 
Fairfax county, had resided a short time and voted twice in Ohio, 
leaving his family in Virginia, and then returned to Fairfax county, 
Virginia, and continued to be a resident and inhabitant of that 
county, for the six months next preceding his election. It was held, 
by the committee, that he was an inhabitant of Virginia, in the sense 
of the constitution. 3 

Jennings Piggott, a native of North Carolina, having resided 
ten years in the city of Washington, District of Columbia, where 
he owned real estate, dwelt with his family, in his own house, 
and had voted for municipal officers, returned to North Carolina, 
in 1862, as the private secretary of the military governor, and, 
having remained there two or three months, was elected, as he 
claimed, a representative in congress. It was held that he was 
not an inhabitant of North Carolina, within the meaning of the 

bailey's case, C. & H. 411. There- having been evicted, the committee 

port was sustained, and the seat vacated, of the whole was discharged from the 

by a vote of 125 to 55. consideration of the report of the coni- 

2 Forsyth's case, id. 97. This case was mittee on elections in this case, and Mr. 

presented to the house by Mr. Bailey, Forsyth retained his seat, 
a representative from Massachusetts, 3 Upton's case, 1 Bart. 3. The report 

whose seat was contested ; Mr Bailey was sustained, by a vote of 73 to 50. 



119 

constitution ; that such an inhabitant is a bona fide member of 
the state, subject to all the requirements of its laws, and enti- 
tled to all the privileges and advantages which they confer. * John 
S. Barbour was a native of the state of Virginia. He never 
claimed citizenship, or permanent residence, elsewhere. His 
post-office, business headquarters, and statutory residence for the 
service of legal process, were in the city of Alexandria, in that 
state ; and while he had a temporary winter residence in the city 
of Washington, he had taken a house in Alexandria, in September, 
which he occupied, with his family, at the time of his election, in 
November, 1880. In July, before his nomination, he declined to 
be listed by the enumerator of Washington, as an inhabitant of 
that city, and stated that he was an inhabitant of Virginia. When 
traveling, beyond the limits of Virginia, he invariably registered 
himself as a resident of that state. At the time of the election he 
was actually residing in Alexandria, without any intention to 
remove therefrom for a permanent residence elsewhere. It was 
held that he was an inhabitant of Virginia, and eligible to a seat, 
in the house of representatives, as a representative from that 
state. 2 

§ 145. While, for some purposes, the states will regard each 
other as foreign jurisdictions, the principles of law relating to 
foreign domicile will not be applied to a case involving the effect 
of mere inhabitancy as a qualification for a seat in a state senate, 
under the state constitution. 3 Under a constitution declaring that 
no person is eligible to the office of senator, "who has not been an 
inhabitant of this commonwealth, for the space of five years imme- 
diately preceding his election," 4 and that "every person shall be 
considered an inhabitant, for the purpose of electing and being 
elected into any office, or place, within this state, in that town, dis- 
trict, or plantation, where he dwelleth, or hath his home," 5 a state 
senator, in order to be eligible to his office, must have been a resident 
of the commonwealth, for the period of five years immediately pre- 
ceding the election ; two facts must have concurred, to constitute 
such residence, first, an actual residence in the state, and, second, 
an intent to make the state his home. 6 In that provision of the 

Foster v. Piggott, 1 Bart. 463. 4 Const. Mass. art. 5, c. 1, s. 2. 

2 Bayley v. Barbour, 2 Ells. 676. 6 Id. art. 2, c. 1, s. 2. 

3 Ordway v . Howe, L. & K. 3. 6 Ordway v. Howe, L. & K. 3. 



120 

Massachusetts constitution which prescribes, as a qualification for 
holding, or being elected to the office of state senator, that the 
person shall have been an inhabitant of the commonwealth, for a 
period of five years immediately preceding the election, the term 
inhabitant means the same as resident. Two things must concur, 
to constitute inhabitancy, or domicile, first, actual residence, and, 
second, the intention to make the place a home. Actual resi- 
dence, for however long a time maintained, will not constitute 
domicile, unless accompanied by the intention of making the place 
of residence a home. Nor will the shortness of the period of 
actual residence defeat the legal residence, or domicile, when ac- 
companied by the proper intention. 1 

§ 146. A state senator of Massachusetts was born at Haverhill, 
Massachusetts, and had resided there, with his parents. After 
leaving college, he studied law there ; and, after completing his 
legal studies, he removed to Michigan, where he was admitted to 
the bar, and remained about ten years, visiting his father, in Haver- 
hill, with his wife, as often as once in two years. In 1847, during 
one of these visits, he expressed an intention of living in the east, 
without designating any place, as soon as he could make arrange- 
ments, and inquired about a law office. He then returned, with 
his wife, to Michigan, and, in the winter of 1847-8, wrote to his 
relatives, advising them of his intention to leave Michigan ; and 
they expected him in Haverhill, without knowing the probable 
time of his arrival. He sold his real estate in Michigan, in 1848, 
and arrived in Haverhill near the end of May, 1848, with his wife, 
and resided with his mother to the time of the election. He rented 
an office in Haverhill, in November, 1848, and occupied it until 
the election. It was held that he was not an inhabitant of the 
commonwealth on January 11, 1848, and therefore had not, on 
January 11, 1853, been an inhabitant for a period of five years, so 
as to be qualified to hold, or to be elected to, the office of state 
senator, under the constitution of Massachusetts. 3 

A senator elect was born in Maine, and went to Massachusetts, 
in September, 1862, where he entered the law school, in Cambridge, 
his name being catalogued as of Maine. At the time he was under 
age ; but he had obtained his freedom from his father, and removed 
all his effects, with him, intending to live and practice law in Massa- 

1 Ordway v. Howe, L. & R. 3. 2 Ordway v. Howe, id. 



121 

chusetts. He was admitted to the bar in Massachusetts November 
1, 1862, upon his petition, in which he stated that he was a citizen 
of that commonwealth. In February, or March, 1854, he went to 
Gray, Maine, and remained there until the following October, teach- 
ing school and opening an office for the practice of law, boarding 
at a hotel, and leaving all his personal effects, except those needed 
for use, in Boston. He was elected a member of the school com- 
mittee, in Gray, soon after his arrival, the claim being made that 
citizenship, in Gray, was not a qualification for that office. He 
paid a tax there, under protest, asserting that he was not liable to 
taxation in that town. He furnished, at Portland (not supposing 
that it affected his domicile), a substitute for the army, who was 
credited to Gray, and for whom that town voted fifty dollars. He 
voted in Gray in 1864, under the belief that he could do so, while 
still retaining his domicile in Massachusetts. He intended all the 
time to return to Boston to practice law, was waiting for a promised 
position in a law office there, and returned to Boston as soon as 
he obtained it. It was held, under the circumstances, that he 
had been an inhabitant of the commonwealth for the space of five 
years, and was eligible to the office. 1 

§ 147. The constitution of Massachusetts contained the follow- 
ing provision : "Every member of the house of representatives 
shall be chosen by written votes, and for one year, at least, next 
preceding his election, shall have been an inhabitant of the town 
he shall be chosen to represent ; and he shall cease to represent 
the said town immediately on his ceasing to be qualified as afore- 
said." 2 A representative in the legislature of Massachusetts was, 
at the time of his election, a minister of the gospel, settled in the 
town from which he was chosen. After taking his seat, he accepted 
a call to a church in New Hampshire, agreeing to commence the 
performance of his pastoral duties, and to preach himself or sup- 
ply the pulpit, from that date. He preached there on the first 
Sunday in April, when his salary commenced, having terminated 
his pastoral relations in Massachusetts in March, and having 
leased his house to his successor and hired a house in New 
Hampshire, to which he subsequently moved his household furni- 
ture, and personal effects, remaining himself, with his wife and 
one of his children, in temporary quarters in Boston, spending 

1 Wait v. Ingalls, L. & R. 133. 2 Const. Mass. c. 1, a. 3, s. 3. 



122 

part of his time in New Hampshire at the place of his new charge, 
intending to make his home there, upon the adjournment of the 
legislature, but wishing to take no step adverse to his tenure of 
the office of representative, and, to that end, stipulating that he 
was not to assume his pastoral duties in New Hampshire, beyond 
supplying the pulpit, until 'the adjournment of the legislature. 
It was held that he had ceased to be an inhabitant of the town, 
which he represented, and that his seat was therefore to be 
declared vacated. 1 But while the removal of a member of the 
house of representatives of Massachusetts, from the state, dis- 
qualifies him from holding his seat, 2 his removal from the town, 
from which he was elected, to another town, in the same state, 
does not work such a disqualification. 3 When a representative, 
after taking his seat in the house, leaves the commonwealth, not 
expecting to return before the prorogation of the general court, a 
precept will not issue for a new election. 4 

§ 148. A returned member of the house of representatives of 
Massachusetts was born in Charlemont, in that state, and had 
resided there, with his wife and daughter and two sisters of his 
wife, occupying, for some years, the homestead of his father-in- 
law, owned by his wife and her sisters, until the summer of 1870. 
He then formed a partnership, for one year, with a resident of 
Rockville, Connecticut, and dissolved his former partnership, in 
Massachusetts, with an agreement that he might renew it, at the 
end of the year. He boarded in Rockville, for a time, with his 
brother-in-law, and afterwards bought a house, to which he re- 
moved, with his wife and daughter, in January, 1871. He left his 
sisters in the house, at Charlemont, paying the household expenses, 
and retaining his church pew at that place. In 1870, 1871, and 
1872, he was elected and re-elected a director of the Shelburne 
Falls National Bank, making oath, each time, that he was a resi- 
dent of Massachusetts. He was assessed and paid a tax upon 
his house and personal property in Rockville, for 1871, supposing 
that persons, even non-residents, were liable to such taxation. 
His name was never on the list of voters in Rockville. He re- 

1 Steere's case, L. & R. 20. 3 Hillman's case, id. 436 ; Gerry's case, 

2 Shepley's case, 0. S. & J. 243; Co- id. 23. 

nant's case, id. 359. 4 Andrews' case, id. 588. 



123 

mained in Rockville more than a year, but closed his business in 
December, 1871, sold his house, and soon afterwards returned, 
with his family, to Charlemont, and renewed his former partner- 
ship. He repeatedly declared that he did not intend to reside in 
Rockville, but went there only for a temporary purpose, intending 
to return to Charlemont, which place he always considered his 
home. It was held that he had not lost his domicile in Charle- 
mont, but had been, for five years preceding the election of No- 
vember, 1876, an inhabitant of Massachusetts, and was eligible 
to the office of state senator. 1 

§ 149. The election of one of the members returned from Boston 
being controverted, on the ground of a want of residence, it ap- 
peared that he had been an inhabitant of Boston, for many years, 
and had been accustomed to send his family out of town, during 
the summer months, visiting them occasionally, and retaining 
rooms in Boston for his own use. In 1850 he built a house in 
Newton, to which his family removed in April, 1851, but he re- 
mained himself in Boston, where he kept rooms, for his own use, 
and also for the occupation of his family when they desired them, 
and he occasionally visited his family, in the country, when his 
business would permit ; but his expressed intention was to remain 
an inhabitant of Boston. It was held that no change of inhabi- 
tancy was proved. 3 A representative, who was born, and had 
always resided, been assessed, and voted, in the town from which 
he was elected, owning and occupying, with his family, a home 
there, from which he had no intention of removing, will not be 
held to have changed his residence, or to have become ineligible 
to the office, by reason of the fact that, during two winters, he 
lived with his family, in a house, in Boston, belonging to his wife 
and her brother, and kept house there, with his brother-in-law. 3 
Where the returned representative had lived, with his family, in 
a tenement, over a store owned by him, in the district, and, in 
July previous to his election, had moved his family and furniture 
into a house owned by him, in the country, outside the district, 
on account of the health of his family, and had leased his former 
tenement, reserving the right to resume it, in the fall, and remained 
in the country until the last of October, when he returned, with his 

'Keith v. Mayhew, L. & E. 239. 3 Merriam v. Batchelder, L. & R. 294. 

2 Holman's case, C. S. & J. 647. 



124 

family, and occupied another tenement in the same building, never 
intending to change his residence, it was held that he continued 
to be an inhabitant of the district from which he was elected, and 
was eligible to the office. 1 

§ 150. A representative, returned as elected in 1876, who had 
lived some years in the district, and, upon the burning of his house, 
in November, 1875, took board outside the district, but, soon after 
the tire, made preparations to rebuild, the work continuing to the 
time of the election, and always intended to live in the house, when 
completed, was held to have continued to be an inhabitant of the 
district, and to have been eligible to the office of representative. 3 
A. was an inhabitant of the town of B., on the twentieth day of 
April, 1847. Being the lessee of a public house, in the city of 
C, liable for the rent thereof, and learning that his sub-lessee had 
not paid the rent, he went to C, and took charge of the house, 
placing his sign upon its front, and having the principal part of 
his family with him, but all the time intended to dispose of his 
lease, at the first opportunity, and to return to B. While keeping 
the house, as aforesaid, he was chosen a representative of the 
town of B. It was held that he was an inhabitant of B., and that 
his election was valid. 3 

A returned member of the house of representatives of Massachu- 
setts, elected in the city of Boston, had lived in his own house in 
Cambridge, for some years prior to 1851, doing business in Boston ; 
and he continued to reside in Cambridge, until August 14, 1854, 
when he commenced boarding at a hotel in Boston, where he 
remained a month, paying by the day, leaving his furniture in his 
house at Cambridge. His family, in the meantime, visited in the 
country. While he remained at the hotel, and at other times, he 
attempted to secure a house in Boston, and expressed a purpose 
to remove to Boston, if he could find a house. In September, 1854, 
his family returned to the house in Cambridge, and he joined them 
there, continuing to live there until March, 1855, when he removed 
to Boston. It was held that he was not a resident of Boston for 
one year previous to November 6, 1855, the day of the election, and 
that he was, therefore, not eligible to the office of representative. 4 

§ 151. Where the state constitution requires a county officer, 

^cribner v. Keyes, L. & R. 296. 3 Robinson's case, C. S. & J. 571. 

2 Prescott v. Crossman, id. 303. 4 Hinks v. Jones, L. & R. 27. 



125 

not only to be a resident of, but actually to reside in, the county, 
and keep his office at a place to be provided by the county, and 
personally to discharge, or superintend the discharge of, the duties 
imposed upon him by law, any voluntary act, which permanently 
disables him for the performance of the duties of his office, such 
as enlistment in the military service of the United States during 
the rebellion of 1861, amounts to a constructive resignation of his 
office by abandonment. And an act of the legislature, purporting 
to empower county officers to enter the military service of the 
United States, and to discharge the duties of their county offices, 
by deputies alone, is unconstitutional. 1 Actual residence in the 
county being a qualification of county officers, in Indiana, a county 
recorder, during his term of office, went to Washington, in the Dis- 
trict of Columbia, and held an appointment as assistant doorkeeper 
of the house of representatives of the United States. He left a 
deputy in charge of his county office, and his family remained in 
the county. Upon the adjournment of congress, he returned to 
the county, and took some personal oversight of his office, and, 
during all the time, he claimed a residence in the county, paid a 
poll tax, and voted there. The supreme court of the state held 
that he did not lose his residence, or abandon his county office. 2 
The true meaning of a constitutional provision that " county and 
district officers shall vacate their offices, by removal from the dis- 
trict or county in which they shall be appointed," is that such 
offices shall become vacant upon an actual change of residence 
from the district or county, as distinguished from a temporary 
absence for a temporary purpose. Under such a provision, it has 
been held that, where the county judge of one county went, with 
his family, into another county, for the purpose of sawing lumber 
with a portable saw-mill, and took up a temporary residence in 
that county, intending to return when he had complied with certain 
contracts for sawing, there was not such a removal from the county 
as would of itself vacate the office. 3 

§ 152. When a person, having connections with a borough town 
previously to his election to the office of bailiff, for which resi- 
dence was a necessary qualification, took a house, at first for four 
years, but afterwards, at his landlord's request, for one, and slept 

1 State v. Allen, 21 Ind. 516. 3 Curry v. Stewart, 8 Bush, 560. 

2 Yonkey v. State, 27 id. 236. 



126 

there one night before the election, and did not return again until 
nearly a month afterwards, when he stayed two days, but retained 
possession of his house, under his lease, during the whole time, 
the taking of the house appearing to have been bona, fide, it was 
held that the residence was sufficient to qualify for the office. 1 
Under a state constitution, requiring every county officer to reside 
in the county in which he holds office, if a county officer, during 
his term, ceases to reside in the county, he abandons and forfeits 
his office. When a county officer has once abandond his office, 
by ceasing to reside in the state, he cannot afterwards resume it. 3 
Non-residence does not terminate an office, before judgment of 
removal. 3 Under a constitutional provision that all civil officers 
of the commonwealth at large shall reside within the state, and all 
district, county, or town, officers within their respective districts, 
the legislature cannot require a secretary of state to reside at the 
seat of government. 4 To be eligible to the office of town coun- 
cillor a candidate must be " entitled to be on" the burgess-roll, 
within 5 and 6 W. 4, c. 76, s. 28, as well as " on " the roll within 
38 and 39 Yict. c. 40, s. 1, sub. s. 2, and the burgess-roll, con- 
taining his name, is not conclusive evidence that he is " entitled 
to be on " the roll. 5 It is sufficient to entitle a person to be nomi- 
nated for the office of councillor of a municipal borough that, if 
otherwise duly qualified, he is enrolled on the burgess-roll in force 
at the time of the election, although his name may not have been 
on the burgess-roll which was in force at the time of the nomi- 
nation. 6 

§ 153. The president and vice-president of the United States 
must be not less than thirty-five years of age, senators not less 
than thirty, and representatives not less than twenty-five. No 
qualification as to age, is prescribed, in the federal constitution, 
for any other officers. The age, at which persons became eligible 
to state offices, is subject to determination by state laws and con- 
stitutions. The king of England may be less than twenty-one 
years of age ; but a regent is usually appointed, when the heir 
apparent is very young. 7 There is no express provision of the 

, *Rex v. Sargent, 5 T. R. 466. 5 Middleton v. Simpson, 5 L. R. C. P. 

2 Yonkey v. State, 27 Ind. 236. 183. 

3 Rex«. Heaven, 1 Doug. 157. 6 Budge v. Andrews, 39 L. T. N. S. 

4 Page v. Hardin, 8 B. Mon. 648. 166. 

7 Blacks. Comm. 248. 



127 

constitution excluding women from the office of president, vice- 
president, senator or representative ; but hitherto no woman has 
held either of these offices. Women are not excluded from the 
throne by the British constitution. No qualification of race or 
property is expressly prescribed, or interdicted, for any office, in 
the federal constitution. A person, who is not a qualified elector 
of the state of Wisconsin, cannot hold a public office, in that state ; 
but the disability of such person may be removed, after the elec- 
tion, and before the commencement of his term of office. And 
when a city charter declares that persons, elected to city offices, 
shall enter upon the duties of such offices, on a day designated, 
but further provides that, " when any such officer shall refuse, or 
neglect, for ten days after notice of his election, or appointment, 
to qualify and enter upon the discharge of the duties of his office, 
the office shall be deemed vacant," if the disability of the officer 
elect be removed, before the close of the " ten days after such 
notice," although after the day designated for the commencement 
of his term, he will be entitled, having otherwise qualified, to enter 
upon and hold the office. 1 

§ 154. When a freehold qualification is not included among 
those prescribed, by the state constitution, for voters, 2 and the 
constitution declares that " all persons entitled to vote shall be 
eligible to any office within the gift of the people, except as 
restricted in this constitution," 3 a statutory requirement that mem- 
bers of electoral boards of cities shall be freeholders is void. 4 
Members of parliament are not required to possess property 
qualifications. 5 No property qualification, for members of the 
house of commons sitting for places in England, or Ireland, has 
been required, since 1858. 6 

§ 155. Where the statute requires the mayor to be elected, 
"out of the aldermen, or councillors," 7 and declares that no per- 

1 State v. Trumpff, 50 Wis. 103. the house during his absence from the 

2 Const. Va. 1867, art. 3, s. 1. country, addressed a letter to the speaker, 

3 Id. s. 2. in which he stated that he did not pos- 

4 Black v. Trower, 79 Va. 123. sess the estate required by law to qualify 

5 21 & 22 Vict. c. 26. him for membership ; whereupon the 

6 May Pari. Pr. 31. house, after waiting the proper time, is- 
In 1826, during the existence of a sued a writ for a new election. C. S. & 

property qualification for members of J. 30, note. 

the house of commons of England, the 7 5 & 6 W. 4, c. 76, s. 49. 

poet Southey, who had been elected to 



128 

son shall " be qualified to be elected, or to be a councillor," who 
" shall not be entitled to be on the burgess list of such borough," 1 
it is no objection to the title that the party, who was councillor 
when elected mayor, is not shown to have been on the burgess- 
roll, at that time ; it being admitted that he was de facto councillor, 
when elected mayor, and that he was on the burgess-roll, when 
elected councillor. 2 A by-law, requiring the mayor to be chosen 
from the aldermen, is repugnant to a charter requiring that officer 
to be chosen from the burgesses or inhabitants. 3 

r 5 & 6 W. 4, c. 76, s. 49. 3 Tucker v. Kegem, 2 Bro. P. C. 304. 

2 Eegina v. Dixon, 15 Q. B. 33. 



CHAPTEK IX. 



DISQUALIFICATIONS OF OFFIOEKS. 



Secs. 

1. Holding incompatible offices, in 

general .... 156, 157 

2. Holding office under the United 

, States .... 158-164 

3. Holding state office . . 165-170 

4. Prior tenure of same office 171, 172 

5. Crime, in general . . . 173 

6. Bribery 174 

7. Duelling .... 175,176 

8. Polygamy . . . f . 177 

9. Sale of office . . . .178 



Secs. 



10. Rebellion, disloyalty, treason, 

test-oath . . . 179-181 

11. Bankruptcy . . . .182 

12. Failure to take the sacrament . 183 

13. Government contracts . . 184 

14. Commission in British army . 185 

15. Pension 186 

16. Clergyman . . . .187 

17. Pendency of impeachment . 188 

18. Absence from state . . . 189 

19. House of commons . . . 190 



§ 156. If the performance of an act be made a disqualification 
for office, the appropriate tribunal for trie determination of con- 
tested election cases may, upon proof of the performance of such 
act, reject, or oust, the officer. 1 At common law the acceptance, 
by a public officer, of a second office, is an implied resignation of 
that first held, if incompatible with it. This rule of the common 
law is not abrogated by a constitutional provision that " every in- 
habitant of this commonwealth, possessing the qualifications, pro- 
vided for in this constitution, shall have an equal right to elect 
officers and be elected to fill public office," 2 and that " every per- 
son, entitled to vote at any election, shall be eligible to any office, 
which now is, or hereafter shall be, elective by the people," 3 and 
under such a constitutional provision a state solicitor, who accepts 
the office of representative in congress, vacates the office of solici- 
tor, which is incompatible with that of representative. 4 The 
incompatibility between two offices, which, upon the acceptance 
of one, by the incumbent of the other, operates to vacate the latter, 
is not simply a physical impossibility to perform the duties of both 
offices at the same time, but is an inconsistency in the functions of 
the two offices, as when one is subordinate to the other, or when 
an antagonism would result from an attempt by one person faith- 
fully and impartially to discharge the duties of both. 5 



1 Cochran v. Jones, McCrary, 189. 

2 Const. S. C. art. 1, s. 31. 

3 Id. art. 7, s. 7. 

9 



4 State v. Buttz, 9 S. C. 156. 

5 People v. Green, 58 N. Y. 296. 



129 



130 

» 

There is nothing contrary to the general rules of law in the 
appointment of the same person to hold several offices, which are 
distinct and independent of each other, when their duties are not 
inconsistent. The offices of judges of the county court, to be 
holden in several districts, plainly satisfy both these conditions. 
Such appointment will, therefore, be good, in the case of those 
offices unless prohibited by statute. 1 Whether a particular office, 
civil, or military, is incompatible with another is a question spe- 
cially to be considered, in each case, regard being had to the 
duties, liabilities, and remedies proper to both. 2 The appoint- 
ment of a person to a second office incompatible with the first 
is not absolutely void, but, on his subsequently accepting the 
appointment and qualifying, the first office is ipso facto vacated. 3 
The law does not make the disfranchisement of the electors the 
penalty for the disqualification of the officers of election. It has 
been held, by the supreme court of Vermont, that, although an 
assistant postmaster could not legally hold the office of justice of 
the peace, yet, having entered upon the office, under the forms of 
law, he was a justice of the peace de facto, and his official acts 
were valid, as to individuals concerned and the public. 4 

§ 157. On an information in the nature of a quo warranto, 
against a person who had held the incompatible offices of capital 
burgess and town clerk of a borough, without interruption for 
many years before and after the enactment of 32 Geo. 3, c. 38, 
the court of king's bench decided, in 1825, that the defendant 
could not hold both offices, and required him to elect which he 
would retain. 5 The office of major-general in the Rhode Island 
militia is, in its nature and duties, incompatible with the office of 
colonel of a "regimental company" inseparably attached to a 
brigade of the division commanded by the major-general ; and 
the acceptance and assumption of the office of colonel is a virtual 
resignation of the office of major-general previously held. 6 The 
offices of attorney-general and prosecutor of the pleas are incom- 
patible with each other, and, in New Jersey, cannot be held by 
the same person, at the same time. When a prosecutor of the 

'Regina v. Parham, 13 Q. B. 858. 6 Rex v. Bond, 3 Dowl. & Ryl. M. C. 

2 Opinion of Judges, 4 E. I. 585. 211. 

b Whitney v. Carigue, 2 Hill, 93. 6 State v. Brown, 5 R. I. 1. 

4 McGregor v. Balch, 14 Verm. 428. 



131 

pleas accepts the office of attorney-general he vacates the former 
office, without any formal resignation or surrender. 1 

The offices of town clerk and alderman are not necessarily incom- 
patible ; for, in some corporations, aldermen are not judicial offi- 
cers. But if an alderman be also a magistrate, and the town clerk 
act ministerially under him, or the alderman be the auditor of the 
town clerk's accounts, the two offices will be incompatible, and an* 
appointment of an alderman, to the office of town clerk, will be 
equivalent to an amotion from the office of alderman. If the 
person, so appointed, continue to exercise the office of alderman, 
quo warranto will lie. 3 The offices of city marshal and city 
councilman are incompatible. 3 The office of deputy-postmaster 
is not incompatible with that of representative in the legislature 
of Massachusetts. 4 The office of a director of the county infirm- 
ary is incompatible with that of superintendent of the infirmary. 5 
The offices of district attorney and of captain in the volunteer 
service of the United States are not, in the absence of statutory 
provision to that effect, incompatible in contemplation of law. 
An acceptance of a captain's commission, in the military service, 
will not, in the absence of such a statute, vacate the office of dis- 
trict attorney held by the person so commissioned. Incompati- 
bility in offices exists when the nature and duties of the offices 
are such as to render it improper, from considerations of public 
policy, for one incumbent to retain both. It does not necessarily 
arise when the incumbent places himself, for the time being, in a 
position where it is impossible to discharge the duties of both 
offices. 6 

§ 158. The office of judge of the district court of the United 
States is incompatible with that of representative in the legislature 
of Massachusetts. 7 The office of representative in the state legis- 
lature is not incompatible with that of deputy clerk of the court 
of special sessions of New York city. 8 The office of district 
attorney of the United States, for the district of Massachusetts, is 
incompatible with that of representative in the legislature of that 

1 State v. Thompson, Spencer (N. J.), 5 State v. Taylor, 12 Ohio St. 130. 

689. 6 Bryan v. Cattell, 15 Iowa, 538. 

2 Kex v. Pateman, 2 Dura. & E. 777. 7 Sewall's case, C. S. & J. 30. 

3 State v. Hoyt, 2 Oregon, 246. 8 People v. Green, 58 N. Y. 296. 
4 Keeler's case, 0. S. & J. 55. 



132 

commonwealth. 1 The office of member of a state board of educa- 
tion is incompatible with that of governor, or attorney-general. 2 
The office of professor of law, in Harvard University, is incom- 
patible with that of representative in the legislature of Massa- 
chusetts. 3 The offices of prudential committee-man and auditor 
of a school district are incompatible ; a person who is elected to 
both offices, at the same meeting, and accepts the latter, thereby 
declines the former. 4 A deputy United States marshal was allowed 
to occupy a seat in the house of representatives of the state of 
Massachusetts. 5 In New Hampshire the offices of selectman and 
school committee-man are not incompatible. 6 The office of chap- 
lain, in the army of the United States, is incompatible with that 
of a representative, in the legislature of Massachusetts. 7 The 
mayor of a borough not divided into wards, who, with the two 
assessors, presides at, and declares the result of, the election of 
town councillors for the borough, under the statute, 8 is precluded 
from being a candidate for election as town councillor, inasmuch 
as he acts as a returning officer, and cannot return himself. But, 
under the provision that no person shall be eligible as councillor, 
'' during such time as he shall hold any office or place of profit, 
other than that of mayor," in the disposal of the council of the 
borough, the mayor is eligible as town councillor, if the borough 
is divided into wards, for a ward in which he is not acting as 
returning officer. 9 

§ 159. " No senator or representative shall, during the time for 
which he was elected, be appointed to any civil office under the 
authority of the United States, which shall have been created, or the 
emoluments whereof shall have been increased during such time ; 
and no person holding any office under the United States, shall 
be a member of either house during his continuance in office." 10 
A member of the centennial commission, created by act of con- 
gress, approved March 3, 1871, held an office of trust, under the 
United States, in the sense of the constitutional provision, that 
"no senator, or representative, or person holding an office of trust, 

1 Gore's case, C. S. & J. 29. 6 School District v. Carr, 55 N. H. 452. 

2 Willis i). Owen, 43 Tex. 41. 7 Aiken's case, C. S. & J. 194. 

3 Stearns' case, C. S. & J. 217. e 5 & 6 W. 4, c. 76, ss. 32-35. 

4 Cotton v. Phillips, 56 N. H. 220. 9 Eegina v. Owens, 2 El. & El. 86. 

5 Brown's case, C. S. & J. 34. I0 Const. U. S. art. 1, s. 6. 



133 

or profit, under the United States, shall be appointed an elector ;" 1 
and his election, to the office of presidential elector, was void. 
It was not possible for him, by declining the office, to occasion a 
vacancy, in the sense of the statute of Rhode Island, declaring, 
that " if any electors, chosen as aforesaid, shall, after their said 
election, decline the said office, or be prevented, by any cause, 
from serving therein, the other electors, when met in Bristol in 
pursuance of this chapter, shall fill such vacancies, and shall file 
a certificate in the secretary's office of the person, or persons, by 
them appointed." 2 Before^ any person can decline, under this 
section, he must first be elected, and no person can be elected who 
is ineligible or in other words incapable of being elected. The 
disqualification for the office of presidential elector could not have 
been removed, by the resignation of the office of centennial com- 
missioner, unless such resignation occurred before the election to 
the office of presidential elector. 3 

The credentials of James H. Lane, one of the senators elected 
by the legislature of Kansas, in April, 1861, were presented July 
4, 1861, and he took his seat. On the 12th of July, 1861, the cre- 
dentials of Frederic P. Stanton, appointed to the seat held by Mr. 
Lane, were presented and referred to the committee on the judici- 
ary. On the 2d of August, 1861, the committee reported that Mr. 
Lane was appointed a brigadie'r-general, in the volunteer forces, 
by the president, on the 20th of June, 1861 ; that he accepted the 
appointment, and was legally qualified to perform its duties ; that 
the office of brigadier-general was incompatible with that of sena- 
tor ; that, by accepting it, he, in effect, resigned his seat, which 
then became vacant ; that on the 8th day of July, 1861, the gov- 
ernor of Kansas commissioned Mr. Stanton to fill the vacancy so 
occasioned ; and they recommended the adoption of a resolution, 
declaring that Mr. Stanton was, and Mr. Lane was not, entitled to 
the seat. But the senate awarded the seat to Mr. Lane, by a vote 
of 24 to 16, some voting in favor of Mr. Lane's title, on the ground 
that the office of brigadier-general of volunteers had not been 
created on the 20th of June, 1861, and others on the ground that, 
although he held the office after he was elected senator, he resigned 
it before he took his seat, and therefore did not come within the 

1 Const. U. S. art. 2, s. 1. 3 Corliss' case, 11 R. I. 638. 

2 Gen. Stat. R. I. c. 11, s. 7. 



134 

provision of the sixth section of the first article of the constitu- 
tion. 1 

§ 160. Members elect of the congress of the United States were 
not disqualified, in 1792, from holding seats as members of the 
legislature of Massachusetts. 3 The superintendent of a breakwater 
is not ineligible to the house of representatives of Massachusetts, 
as a person holding office under the authority of the United States. 3 
The office of commissioner of bankrupts, under the first bankrupt 
law of the United States, 4 was held not to be incompatible with 
that of representative in the legislature of Massachusetts. 5 A 
member of the legislature of Massachusetts, who resigned the office 
of deputy collector of the customs, on the day of his election, and 
was afterwards occasionally employed as an inspector, but, at the 
time of taking his seat, held no office in the customs, was not dis- 
qualified. 6 A representative in the legislature of Massachusetts, 
who performed the duties of a deputy collector of the customs, 
under the United States, from the close of the first session to the 
commencement of the second, was held to have become disqualified 
to hold his seat. 7 The office of chief supervisor of elections, created 
by the act of congress passed February 28, 1871, 8 is additional to 
that of circuit court commissioners, and not incident, or appurte- 
nant, thereto. It is therefore within the provisions of the New York 
city charter of 1870, 9 which declares that the acceptance of office, 
under the federal government, is a relinquishment of any office 
held under the city ; and is not within the exception in favor of 
commissioners. 1 ° The office of mayor cannot be held by a retired 
officer of the army of the United States, under a constitution de- 
claring that no person holding, or exercising, any office of profit, 
or trust, under the United States, shall " hold or exercise any 
office of .profit, or trust, under this state." 11 

§ 161. The house of representatives of the United States, by 
the casting vote of the speaker, adopted, December 10, 1817, a 

1 Stanton v. Lane, Taft, 205. 

2 Members of Congress, case of, C. S. 'Adams' case, C. S. & J. 251. 

& J. 35. s 16 Stat. 437. 

3 Bassett's case, id. 393. 9 Stat. N. Y. 1870, c. 335, s. 114. 

4 Act of 1800, c. 19. 10 Davenport v. Mayor, 67 N. Y. 456. 

5 Austin's case, C. S. & J. 47. " Const. Tex. 1876, art. 16, s. 12 ; State 

6 Adams' case, id. 235; Pratt's case, v. DeGress, 53 Tex. 387. 
id. 236. 



135 

resolution instructing the committee of elections to enquire and 
report what persons, elected to serve in the house, had accepted, 
or held, offices under the government of the United States, sioce 
March 4, 1817, and how far their right to seats was affected thereby. 
On the twelfth of December, 1817, the committee reported and 
the house adopted a resolution, requesting the president of the 
United States to inform the house whether any, and, if any, which 
of its members had held any office, under the United States, since 
March 4, 1817, designating the offices which they had respectively 
held, and the dates of their appointment to and acceptance of such 
offices ; and whether the same were still held, and, if not, when 
they were severally resigned. The president, on December 26, 

1817, sent to the house a message, containing the names of nine 
representatives embraced within the scope of the inquiry. 1 

The report of the committee of elections, made January 15, 

1818, in the case of Hammond v. Herrick, covered the question 
presented in these cases. In October, 1816, Mr. Herrick was 
chosen one of the representatives of the state of Ohio, in the 
fifteenth congress. The fourteenth congress expired March 4, 
1817 ; but Mr. Herrick, who was a district attorney of the United 
States, at the time of his election, continued to hold that office 
until November 29, 1817. The result of his election was publicly 
announced January 7, 1817, in the presence of the senate of the 
state. On the fifteenth of September, 1817, the governor executed 
a certificate of Mr. Herrick's election, which he received on, or 
about, the thirtieth of the same month. Mr. Herrick, therefore, 
continued in office almost nine months after March 4, 1817, and 
two months after receiving the certificate of his election. It was 

1 John Holmes of Massachusetts, com- appointed March 11, 1813, resigned Octo- 

missioner under the fourth article of the ber 23, 1817 ; George Robertson of 

treaty of Ghent, appointed February Kentucky, assessor of internal revenue, 

16, 1816, resigned November 24, 1817; appointed January 4, 1815, resigned June 

Samuel Herrick of Ohio, attorney of 5, 1817 ; George Mumford, of North Car- 

the United States, appointed November olina, assessor of internal revenue, who 

19, 1810, resigned November 29, 1817 ; had not yet resigned ; Levi Barber of 

Daniel Cruger of New York, postmaster, Ohio, receiver of public moneys, ap- 

appointed June 29, 1815, resigned De- pointed March 3, 1817, resigned Decem- 

cember 1, 1817; Elias Earle of South ber 1,1817; and John F. Parrot of New 

Carolina, postmaster, appointed in April, Hampshire, naval officer, appointed April 

1815, resigned June 12, 1817; Thomas 23, 1816, resigned November 15, 1817. 
H. Hubbard of New York, postmaster, 



136 

not admitted that he performed any act, as district attorney, after 
September 30, 1817. But he continued in office, liable to perform 
its duties and \entitled to its salary, until November 29, 1817. 
Congress met December 1, 1817, and Mr. Herrick took his seat, 
on that day, in the house of representatives. 

The following is the substance of the decision of the committee : 
They held that the prohibition of the constitution was not limited 
to the exercise of an office, under the United States, by a member 
of congress, but extended to the holding of such office, and, if the 
membership of Mr. Herrick commenced either on March 4, or on 
September 30, 1817, he had vacated that membership by holding 
an office incompatible therewith. They reviewed the cases of 
Yan Ness, in the seventh congress, and Key in the tenth con- 
gress, and the decision of the British house of commons, under 
5 William and Mary, c. 7, 11 William 3, c. 2, 12 and 13 William 
3, c. 10 ; in the cases of Montague, in 1698, and Allen, in 1708, 
and also in the cases of Leech, in 1620, and Archdale, in 1698. 
And they stated that it was the practice of the house to permit 
no persons to be appointed members of a committee until sworn, 
and that, in Mercer's case, 1 in the second congress, it had been 
decided that a representative might decline the election, before 
taking his seat. The act of becoming a member of the house, 
they said, depended on the will of the person elected and returned ; 
the election did not constitute membership, the return did not 
confer it, nor did the election and return, together, confer it. A 
disqualified person, though elected and returned, would not be a 
member, and yet no vacancy would exist, until his disqualification 
should be adjudged. A representative elect, who should die be- 
fore the organization of the house, could not be said to have been 
a member of the house. 

The theory which made congress a continuing corporation was 
without foundation ; each house was a distinct legislative body, 
having no connection with any preceding one, and was bound 
neither by rules of a former house, nor by joint rules of former 
houses, until adopted by itself ; it prescribed its own rules, elected 
its own officers, and designated their duties ; and, if the fourteenth 
congress had never assembled, the fifteenth would have met, under 
the constitution, clothed with every legislative power as fully as 

1 Mercer's case, C. & H. 44. 



137 

was the thirteenth. The constitution did not fix the time for 
which representatives should be chosen, but was satisfied if they 
were chosen, at any time in every second year, and the rest was 
left to the states, in some of which representatives were chosen 
for one year and seven months, and in others for longer periods. 
The privilege of exemption from arrest, granted by the constitu- 
tion to representatives while going to and from sessions of the 
house, afforded no argument in favor of their membership at such 
times ; the object of the exemption was, in the United States, as 
in England, the benefit, not of the representative, but of the pub- 
lic service ; it was an incident to, and consequence of, the right 
to be represented ; and, if membership were co-extensive with the 
enjoyment of the exemption, it might continue, not only after the 
congress expired, but even after the succeeding congress com- 
menced its session. 

The franking privilege and the exemption from military duty 
were conferred, the committee added, not by the constitution, but 
by statute, and were liable to change, at the will of the legislature. 
Until the previous congress, the franking privilege had not been 
enjoyed, before the commencement of the session ; and, as that 
did not prove that representatives elect were not members of the 
house before that time, so did the existing law not prove that they 
were. It was no part of the object of the franking privilege to 
declare when membership commenced, but the franking law was 
originally enacted to enable citizens to forward war claims to their 
representatives upon their departure from home for Washington. 
The practice of military officers, under the law exempting members 
of congress from military duty, furnished no very high authority 
on the constitutional question under consideration. So far as the 
apprehension of executive influence was concerned, it was their 
duty to interpret, not frame, the constitution ; to inquire what it 
was, not what it ought to be ; and the only constitutional answer 
of the committee, to the suggestion of possible danger of executive 
influence, was that no dependent on the executive could take a 
seat in the house, and, if any member should become such, his 
£eat would become vacant, and his power return to the people, 
who, by a faithful and intelligent exercise thereof, could correct 
errors and punish delinquencies, and that there was more reason 
to apprehend a bargain with the executive for a new appointment 



138 



than for a reappointment. Under the state constitutions the incom- 
patibility was generally confined to the power of acting ; in a few 
instances it extended to eligibility, but in none to the precise term 
for which the person was elected. Repeated instances/they said, 
had occurred even stronger than the case under consideration. 
And the committee cited those mentioned in the argument of the 
sitting member. 1 



'Hammond v. Herrick, C. & H. 287. 

On the 19th of March, 1818, the com- 
mittee of the whole disagreed to the 
report of the committee of elections, on 
motion of Mr. Adams, of Massachusetts, 
by a vote of 67 to 66. But the house 
overruled the committee of the whole, 
by a vote of 77 to 73, and Mr. Herrick 
retained the seat. 

Mr. Hammond, the memorialist, ques- 
tioned Mr. Herrick' s title to the seat, on 
the following grounds: Congress was, 
he insisted, a political institution of 
continuing duration, and the designation 
"fourteenth congress," or "fifteenth 
congress," was to be referred, not to the 
institution itself, but to the members 
who composed it. The term of the mem- 
bers elect commenced March 4, 1817, 
and since that day they had been mem- 
bers of congress, whether sworn in or 
not. The term of the sitting member 
commenced March 4, 1817; and, if he 
was not a member of the house then, he 
was not, at the time of the contest, enti- 
tled to his seat. The statute of Ohio 
provided that representatives should be 
elected for terms of two years from the 
fourth of March. If the sitting member 
had died, after March 4 and before he 
was sworn in, the executive authority of 
the state of Ohio would have been com- 
pelled, under the constitution, to issue 
writs of election to fill the vacancy; 
whereas, if he was not then a member 
of the house, his death would occasion 
no vacancy. 

The provision of article 1, section 6, of 
the constitution of the United States, 
which exempts from arrest members of 



congress, in certain cases, during their 
attendance at the session and while going 
to and from the same, was evidence that 
members elect were legally members be- 
fore they qualified by taking the oath. 
The militia law of the United States, ex- 
empting members of congress from mi- 
litia duty, had always been considered as 
applicable to members elect from the 
commencement of their terms. The 
franking privilege had been claimed 
and exercised by members elect, from 
the commencement of their terms, before 
taking the oath of office. If the person 
elected became a member on the day his 
term commenced, he must on that day 
have been capable, under the constitu- 
tion, of occupying his seat ; but the sit- 
ing member, having held an office, under 
the United States, on that day, was not 
capable of holding a seat in the house 
of representatives ; on that day he 
held, and received the emoluments of, 
the office of United States district at- 
torney for Ohio, whereas the constitu- 
tion expressly declared that no person, 
holding any office under the United 
States, should be a member of either 
house of congress, during his continu- 
ance in office. 

The language of the constitution, the 
memorialist claimed, was clear and ex- 
plicit ; and it was not intended to pro- 
hibit the performance of the duties of 
senator, or representative, and those per- 
taining to other United States officers, a,t 
the same time, but was intended to make 
the holding of an office, under the United 
States, and the position of a member of 
congress utterly incompatible. The 



139 



§ 162. The acceptance, by a member of the house of repre- 
sentatives, of the office of major of militia, in the District of 



framers of the constitution intended, by 
shutting out from both houses the de- 
pendents and creatures of the treasury, 
to close the doors of the legislature 
against undue executive influences, and 
to preserve the American congress from 
the baneful consequences of that indi- 
rect and invisible system of bribery 
which had corrupted and disgraced the 
British parliament. The provision of 
the constitution occasioned an absolute 
incapacity ; a member elect, who held 
another office, at the commencement of 
his term, vacated his seat ; and, if a dif- 
ferent construction should be adopted, 
congress might soon be filled with men 
who received executive appointments, 
after their election, and only resigned 
them in time to serve executive pur- 
poses in the legislature. 

The sitting member made, in sub- 
stance, the following reply : The ques- 
tion submitted, for the consideration 
and report of the committee, was 
whether a person, who was elected a 
representative to congress, on the second 
Tuesday of October, 1816, received the 
certificate of his election in October, 
1817, and held the office of attorney of 
the United States before March 4, 1817, 
and from that date until November 29, 
1817, was entitled to his seat on the first 
Monday of December, 1817. The mere 
election did not constitute a person a 
member of the house, anymore than did 
the nomination by the president, with 
the approbation of the senate, constitute 
an appointee, a judge, an ambassador, 
or consul, without any acceptance, or 
qualification, on his part; something more 
must be done by the candidate, as well 
as by the people, or government, to con- 
stitute him an officer, either in law, or . 
in fact. In the case of a representative 
the people must elect, the votes must be 
canvassed, the election proclaimed, and 
evidence of the election presented, be- 



fore the candidate was bound even to 
know that he was chosen ; and, in addi- 
tion to all that, two acts were to be per- 
formed, one by the inchoate represent- 
ative and one by the government, before 
he became, in the sense of the con- 
stitution, a member of the house. It 
was necessary that the representative 
should appear and take the oath of office, 
whereby only could he accept it, and 
that the speaker should administer that 
oath. If any one of these requirements 
could be dispensed with as essentials to 
membership, all could be ; if the appear- 
ance and the oath could be dispensed 
with, so could the election itself. 

The statute of Ohio, providing for the 
election of representatives for terms of 
two years from March 4, was of no con- 
stitutional validity to make a person a 
member of the house before he was sworn 
in. A representative elect was not, before 
he qualified, a member of the house, in 
the sense of article 1, section 6, of the 
constitution, because, if he was, not 
only did his rights but also his duties 
then exist ; and, if a special session 
should be called, he could be forced to 
attend and take the oath. There was a 
distinction, in the constitution, between 
a representative elect and a member of 
the house ; a member, unlike a repre- 
sentative elect, was a person who has, 
not only been elected, but also sworn in. 
If representatives elect, before being 
sworn in, had exercised the franking 
privilege and enjoyed exemption from 
militia service, it was doubtful whether 
it was warranted by the constitution. 
If the framers of the constitution had 
intended that no person, holding an of- 
fice under the constitution, should be a 
representative elect, the same language 
would have been used as in article 1, 
section 2, and in article 2, section 1, 
prescribing the qualifications of repre- 
sentatives and electors. 



140 

Columbia, was unanimously held, by the committee and house, 
to work a forfeiture of his right to a seat in the house, 1 under the 
constitution of the United States. 3 Colonels of volunteers, al- 
though commissioned by the state authorities, are officers of the 
United States, in the sense of the constitutional provision that no 
person, holding any office, under the United States, shall be a 
member of either house, during his continuance in office. The 
acceptance and exercise of the office of colonel of volunteers 
vacates the seat of a member of the house of representatives. 3 
And a representative elect, who accepted a commission as colonel 
of volunteers, under the act of July 22, 1861, and was mustered 
and actually served as such, was divested of his title to a seat in 
the house by virtue of the constitutional provision, although he 
was commissioned by the governor of the state, in accordance with 
the provisions of that act, and was in the commission, inaccurately 
styled colonel of militia. 4 The formal resignation of another 
office, held by a representative elect, at and after the time of his 
election, is not necessary provided the office virtually terminated 
before he took his seat. 5 A representative elect is not disqualified 



There was more reason to apprehend a 
bargain with the executive for a new ap- 
pointment than for a re- appointment. 
Under state constitutions, the incompati- 
bility was generally confined to the power 
of acting ; and while, in a few instances, 
it extended to eligibility, in none did it 
extend to the precise time for which the 
person was elected. Repeated instances 
had occurred even stronger than that 
before the committee. Mr. Tracy, of 
Connecticut, while a senator, was ap- 
pointed, by the president, to the per- 
formance of some office relating to the 
Indians, the duties of which encroached 
upon the sessions of congress, and fin- 
ished his duties and took and retained 
his seat. Mr. Dawson, a representative 
from Virginia, was appointed a mes- 
senger to France, between the first and 
second sessions of the congress to which 
he was elected, performed the duties of 
the appointment and returned, and re- 
sumed and retained his seat. Mr. Turner, 



of Massachusetts, claimed the seat of 
Mr. Baylies, and, the contest having 
been decided in his favor, resigned the 
office of postmaster and took his seat 
in the house. Senators Worthington 
and Morrow, of Ohio, were, in 1812, 
appointed by the president to make a 
treaty with certain Indians in that state, 
and having,*?; after March 4, performed 
the duty, took and retained their seats. 
In nearly every congress, since the com- 
mencement of the government, post- 
masters had been elected representa- 
tives, and had held their post-offices, 
after the fourth day of March succeed- 
ing their election. And finally, the sit- 
ting member insisted, when a represent- 
ative was fairly elected by the people, 
every doubt should weigh in his favor. 

1 Van Ness' case, C. & H. 122. 

2 Const. U. S. art. 1, s. 6. 

8 Cases of Baker and Yell. 1 Bart. 92. 
4 Byingtonv. Vandever, id. 395. 
6 Mumford's case, C. & H. 316. 



141 

by continuing to hold the office of postmaster after his election 
provided he resigns the office before he takes his seat in the 
house. 1 Under a constitutional provision that "no person shall 
hold more that one lucrative office, at the same time," the accept- 
ance of the office of colonel of United States volunteers, vacated 
the office of reporter of the supreme court of Indiana, 2 and the 
acceptance of the office of major of United States volunteers 
vacated the office of county auditor. 3 No person belonging to the 
army or navy can be elected to or hold any civil office, or appoint- 
ment, in any territory. 4 

§ 163. Under the provision of the constitution of Maine, dis- 
qualifying a member of congress for the office of state councillor, a 
representative elect did not waive his right to a seat in the house 
for the term which commenced March 4, 1829, by holding the 
office of state councillor, from a day in January, 1829, to a day 
in February, 1829. 5 A person selected by the secretary of state 
of the United States, to print the laws of the United States, does 
not hold an office, appointment, or employment, under the United 
States, incompatible with the office of alderman of Philadelphia, 
under a statute, providing that " every person who shall hold any 
office, or appoiDtment, of profit, or trust, under the government 
of the United States, whether a commissioned officer, or other- 
wise, a subordinate officer, or agent, who is, or shall be, employed 
under the legislative, executive, or judiciary departments of the 
United States, and also every member of congress is hereby 
declared to be incapable of holding, or exercising, at the same 
time, the office, or appointment, of justice of the peace, mayor, 
recorder, burgess, or alderman, of any city, corporate town, or 
borough, resident physician at the Lazaretto, constable, judge, 
inspector, or clerk of election, under this commonwealth." 6 The 
constitution of California contained the following section : " No 
person, holding a lucrative office under the United States, or any 
other power, shall be eligible to any office of profit under this 
state."' 7 The statute authorized any elector of the proper county, 
or township, to contest an election on the following ground, amongst 

Carle's case, C. & H. 314. 5 Washburn v. Kipley, C. & H. 679. 

2 Kerr v. Jones, 19 Ind. 351. 6 Commonwealth v. Binns, 17 S. &. K. 

3 Mehringer v. State, 20 Ind. 103. 219: Stat. Penn. Feb. 12, 1802. 

4 Kev. Stat. U. S. s. 1860. 7 Const. Cal. 1849, art. 4, s. 21. 



142 

others : that the person, whose right to the office was contested, 
" was not, at the time of the election, eligible to such office." 1 In 
a proceeding instituted to contest the election of a sheriff, who, at 
the time of the election, was a postmaster, but resigned the office 
of postmaster, before he qualified as sheriff, it was held that he 
was incapable of election to the office of sheriff and could not, by 
the subsequent resignation of his federal office, avoid the effect 
of the constitutional provision. 3 

§ 164. The constitution of Kansas contained the following 
clause: "And such justices, or judges, shall receive no fees or 
perquisites, nor hold any other office of profit or trust, under the 
authority of the state, or United States, during the term of office 
for which said justices and judges shall be elected, nor practice 
law, in any of the courts of the state, during their continuance in 
office." 3 It was held by the supreme court of the state, that the 
mere acceptance of a military office, under the government of the 
United States, by a justice of the supreme court of Kansas, un- 
accompanied by a resignation of his judicial office, did not vacate 
his office, and that, while it was not in the power of the state of 
Kansas to fix the qualifications of officers of the United States, 
the inhibition of the constitution was valid and operative to make 
the acceptance of the federal office of no effect to vacate the state 
office. 4 A statute declaring that a civil office shall become vacant, 
upon " the acceptance of a commission to any military office, 
either in the militia of the state, or in the volunteer service of the 
United States, which requires the incumbent of the civil office to 
exercise his duties out of the state, for a period not less than sixty 
days," applies to those officers who accepted commissions in the 
military service before the act took effect, as well as to those 
thereafter accepting such commissions. 5 

§ 165. A judge of probate, having been elected to the house of 
representatives of Massachusetts, and having resigned his office of 
judge, after the commencement of the session, was held to be 
entitled to take his seat. 6 A constitutional provision that "no 
person elected to any judicial office shall, during the term for 
which he shall have been elected, be eligible to any office of trust, 

1 Wood's Cal. Dig. p. 380, art. 2155, s. 51. 4 State v. Cobb, 2 Kan. 32. 

2 Searcy v. Grow, 15 Cal. 117. 5 Bryan v. Cartell, 15 Iowa, 538. 
8 Const. Kan., 1859, art. 3, s. 13. 6 Sargeant's case, C. S. & J. 39. 



143 

or profit, under the state, other than a judicial office," 1 is not 
applicable to a person elected, with his consent, to a judicial office, 
which he does not accept, but such person may be afterwards 
elected to an office not judicial, the term of which will begin upon 
the expiration of the judicial term to which he was elected. 2 In 
such a constitutional provision, the term eligible means legally 
qualified, and if the term, for which he may have been elected, 
expire after the election and before his entry upon the new office, 
he may lawfully take and hold the new office. The language of 
the opinions in the cases of Waldo v. Wallace, 12 Ind. 569 ; 
Gulick v. New, 14 Ind. 93, and Howard v. Shoomaker, 35 Ind. 
Ill, must be limited to cases where the judicial term runs beyond 
the commencement of the term of the office not judicial, to which 
the person is subsequently elected. 3 

§ 166. A constitutional provision that "no judge of any court, 
shall, at the same time, have a seat in the senate, or house of 
representatives, of this commonwealth," 4 is applicable to a special 
justice of a police court. Such a judge vacates his judicial 
office, by accepting a seat in the house of representatives, and, 
if he persist in the exercise of his judicial office, may be ousted 
by an information in the nature of a quo warranto. 5 It had 
been enacted that no person should be eligible to the councils of 
Philadelphia, who, at the time of his election, held " office, or em- 
ployment." under the state. A notary public having been elected to 
the councils, a quo warranto to oust him was issued, on the sugges- 
tion of private relators ; pending which an act of the legislature was 
passed, declaring that the meaning of the first act was not to prevent 
a member of the councils from holding the office of notary public, 
and that no member of the councils, then in office, should be dis- 
qualified, on account of being a notary public, or removed from the 
councils, for such disqualification. It was held that the latter act 
was constitutional ; that it merely modified the charter of a munici- 
pal corporation, over which the legislature had control, and did 
not interfere with any vested right ; and that it did not interfere 
with the proper functions of the judiciary. 6 The state constitu- 



1 Const. Ind. 1851, art. 7. 

2 Smith v. Moore, 90 Ind. 294. 

3 lb. 

4 Const. Mass. Amend. 8. 



5 Commonwealth v. Hawkes, 123 Mass. 
525. 

6 Hawkins v. Commonwealth, 76 Penn. 
St. 15. 



144: 

tion contained the following provision : " No person holding the 
office of clerk of the supreme judicial court, or clerk of the 
inferior court of common pleas, shall, at the same time, have a 
seat in the house of representatives ; but his being chosen, or 
appointed, to, and accepting, the same, shall operate as a resig- 
nation of his seat in the house of representatives, and the place 
so vacated shall be filled up." 1 When a representative, during 
the recess of the legislature, was appointed clerk of the supreme 
judicial court, of the court of common pleas, and of the board of 
county commissioners, to fill a vacancy, and qualified for and 
assumed the duties of those offices, but resigned them before the 
legislature reassembled, it was held that the assumption of the 
office of clerk vacated his seat in the house of representatives. 2 
§ 167. Under a statute declaring that " no alderman shall, during 
the term for which he is elected, hold any other public office, 
except that of notary public, or commissioner of deeds," and that 
the acceptance of such office, during the term of his office as such 
alderman, shall immediately vacate the latter office, upon the 
acceptance, by an alderman, of the office of representative in 
congress, he ceases to be an alderman, either dejure, or de facto, 
and no direct proceeding is necessary to determine his title. If 
the statute make it the duty of the common council to order an 
election, to fill the vacancy so occasioned, mandamus will lie to 
compel the performance of the duty. 3 Under a bill of rights 
declaring " that no person ought to hold more than one office of 
profit created by the constitution or laws of this state," 4 an in- 
junction will not be granted, to restrain the proceedings of officers 
of registration, on the ground that they hold, at the same time, 
other state offices of profit, in contravention of the declaration of 
rights. 5 If a judge of a district court hold, at the same time, the 
office of mayor of a city, within the district, the question whether 
he is disqualified to act as judge, by reason of incompatibility in 
the two offices, cannot be determined on an appeal taken by a 
person whom he has tried and found guilty upon a complaint 

originally made returnable before him. 6 

■ 

1 Const. Mass. c. 6, a. 2. 3 People v. Common Council, 77 N. Y. 

2 Griffin's case, L. & R. 71. The re- 503. 

port of the committee was rejected by 4 Md. Decl. Rights, 1864, art. 35. 

the house, by a vote of 59 yeas to 69 5 Hardesty ». Taft, 23 Md. 512. 

nays. 6 Commonwealth v. Taber, 123 Mass. 

253. 



145 

§ 168. The constitution of the state of Alabama contained the 
following provisions : " No senator, or representative, shall, during 
the term for which he shall have been elected, be appointed to any 
civil office of profit, under this state, which shall have been created, 
or the emoluments of which shall have been increased, during 
such term ; except such offices as may be filled by election by the 
people." 1 " The powers of the government of the state of Alabama 
shall be divided into three distinct departments, and each of them 
confided to a separate body of magistracy, to wit : those which 
are legislative to one ; those which are executive to another ; and 
those which are judicial to another." 2 " No person, or collection 
of persons, being of one of those departments, shall exercise any 
power properly belonging to either of the others, except in the 
instances hereinafter expressly directed, or permitted." 3 "Chancel- 
lors, judges of the supreme court, judges of the circuit courts, 
and judges of the inferior courts, shall be elected, by joint vote of 
both houses of the general assembly." 4 In an information in the 
nature of a quo warranto it appeared that the defendant, w T hile a 
member of the state legislature, had been elected, by the legisla- 
ture, in violation of the constitution, to a judicial office, which 
had been created by the legislature, while he was a member, and 
during the same session at which his election to the judicial office 
occurred. But the supreme court of the state held that the legis- 
lature was the exclusive judge of the constitutionality of its action 
in the premises, and that the court could not interfere. 5 

§ 169. The constitution of Arkansas contained the following pro- 
visions : " The powers of the government of the state of Arkansas 
shall be divided into three distinct departments, each of them to 
be confided to a separate body of magistracy, to wit : those which 
are legislative to one ; those which are executive to another ; and 
those which are judicial to another. 6 No person, or collection of 
persons, being of one of those departments, shall exercise any 
power belonging to either of the others, except in the instances 
hereinafter expressly denoted, or permitted. 7 The judicial power 
of this state shall be vested in one supreme court, in circuit courts, 



1 Const. Ala. 1819, art. 3, s. 25. 

2 Id. art. 2, s. 1. 

3 Id. s. 2. 

4 Id. art. 5, s. 12. 

10 



5 State v. Paul, 5 Stewart and Porter,40. 

6 Const. Ark. 1836, art. 3, s. 1. 

7 Id. s. 2. 



146 

in county courts, and in justices of the peace." And one of the 
sections of the article relating to the executive departments con- 
tained this provision : " There shall be elected, by the joint votes 
of both houses of the general assembly, an auditor and treasurer 
for this state." 1 The supreme court of Arkansas held that, in the 
sense of the constitution, the treasurer of state was an officer of 
the executive department ; that justices of the peace were officers 
of the judicial department ; that the same person could not hold 
the offices of state treasurer and justice of the peace, at the same 
time ; that a person holding one of these two offices had a right 
to accept the other, but, by such acceptance, vacated, eo instanU, 
the office first held. 2 Under a constitutional provision that, "no 
person elected to any judicial office shall, during the term for which 
he shall have been elected, be eligible to any office of trust or 
profit, under the state, other than a judicial office," 3 it was held 
that the office of city clerk was not an office under the state, and 
that a person who had been elected to the office of justice of the 
peace, and had qualified and entered upon the duties of the office, 
was not ineligible to the office of city clerk, during the term for 
which -he was elected justice of the peace. 4 When the state con- 
stitution provides that no person, elected to any judicial office, 
shall, during the term for which he shall have been elected, be 
eligible to any office of trust, or profit, under the state, other than 
a judicial office, the courts, in determining whether a particular 
office is judicial, in its character, will, if the statute be not clear 
upon the subject, look to the jurisdiction and duties of the office. 
A mayor of a city, who is invested with judicial powers, in addi- 
tion to his executive and administrative powers, is, during his 
official term, ineligible to the office of sheriff. 5 Under a consti- 
tutional provision that " no person shall hold or exercise, at the 
same time, more than one office of trust or profit, except that of 
justice of the peace or notary public," a statute making clerks of 
district courts ex-officio clerks of parish courts, is void. 6 

§ 170. The constitution of Indiana contained the following 
provision : " No person holding a lucrative office, or appointment, 

1 Const. Ark. 1836, art. 5, s. 24. 5 Waldo v. Wallace, 12 Ind. 569. 

2 State v. Hutt, 2 Ark. 283. 6 Bouanchaud v. D'Hebert, 21 La. Ann. 

3 Const. Ind. 1851, art. 7, s. 16. 138. 

4 Mohan v. Jackson, 52 Ind. 599. 



147 

under the United States, or under this state, shall be eligible to a 
seat in the general assembly ; nor shall any person hold more than 
one lucrative office, at the same time, except as in this constitu- 
tion expressly permitted." 1 It was held by the supreme court of 
the state, that the office of councilman of a city, although 
lucrative in the ordinary sense of the term, was not a lucrative 
office, in the sense of the foregoing constitutional provision. 2 
When duties, previously performed by the clerk of the circuit 
court, were, by statute, transferred to the new office of county 
auditor, and subsequently the office of county auditor, for a certain 
county, was abolished, and the duties of the office restored to the 
clerk of the circuit court, it was held that the clerk, by assuming 
the discharge of those duties, did not become the holder of two 
offices. 3 Where under the general law the mayor of a city has 
jurisdiction, as a judicial officer, throughout the county, the voters 
of the county are chargeable with notice of his ineligibility, under 
the constitution, to any office other than a judicial one, during the 
term for which he was elected. 4 Where the board of trustees of 
an incorporated town elected the relator, who was one of their 
number, to the office of school trustee for the town, to succeed 
the defendant, whose term expired, by law, at the election of his 
successor, and the relator thereupon resigned his office of town 
trustee, and duly qualified as school trustee, but the defendant 
and the other school trustees refused to recognize him as the 
defendant's successor, and the defendant continued to hold the 
office, it was held, by the supreme court of Indiana, that the 
objection to holding two inconsistent offices was obviated by 
the resignation and that the fact that the relator was a member 
of the board of town trustees, which elected him, did not render 
him ineligible to the office of school trustee. 5 

§ 171. Where it is ordained, in a new constitution, that " no 
person shall be eligible to the office of clerk, recorder, or auditor, 
more than eight years, in any period of twelve years," the disability 
refers to periods of time, and not to terms of office ; and a person 
who, at the time when the new constitution goes into operation, 
holds an office which continues for one year thereafter, is not 

1 Const. Ind. 1851, art. 2, s. 9. "Gulick v. New, 14 Ind. 93. 

2 State v. Kirk, 44 Ind. 401. 5 Zorger v. Greenburgh, 60 Ind. 1. 

3 Jones v. Covins, 4 Porter (Ind.) 305. 



148 

eligible for two full terms of four years each, after the expiration 
of the year ; he becomes ineligible, at the expiration of eight years 
from the time when the constitution goes into operation. 1 In a 
constitutional provision that "no person shall be eligible to the 
office of clerk, recorder, or auditor, more than eight years, in any 
period of twelve years," the term eligible relates to the capacity 
of holding, as well as to the capacity of being elected to, an office. 3 
A law of the territory of Wisconsin contained the provision that 
" no person shall be eligible, for two successive terms, to the office 
of sheriff." 3 In the state constitution it is provided that sheriffs 
shall " be ineligible for two years next succeeding the termination 
of their offices ;" 4 and that "all laws, now in force in the territory 
of Wisconsin, which are not repugnant to this constitution, shall 
remain in force until they expire by their own limitation, or be 
altered or repealed by the legislature." 5 The supreme court held 6 
that sheriffs, in office at the expiration of the territorial govern- 
ment, were eligible to re-election at the organization of the state 
government. 7 

§ 172. A statute of Indiana, enacted March 3, 1877, provided for 
the election of a township trustee, on the first Monday in April, 
1878, and every second year thereafter ; and it contained a provision 
that the certificate of the board of judges " shall entitle the holder 
to qualify and enter upon the discharge of the duties of the office, 
to which he is elected, at the expiration of ten days from the day of 
such election." 8 Another statute, enacted March 12, 1877, contained 
the following provision : "Any person who has held the office of 
trustee of any township in this state, for two terms consecutively, 
at the date of the next general election, in October, 1878, shall 
not be eligible to said office for the next ensuing term, and 
hereafter no person shall be eligible to the office of township 
trustee more than four years in any period of six years." 9 A per- 
son who had held the office of township trustee, from October, 
1872, to April, 1878, was re-elected in April, 1878, and again in 
October, 1878. In a proceeding to contest his election, the con- 

1 Carson v. McPhetridge, 15 Ind. 327. ° Two of the five judges dissented. 

2 lb. 7 State v. Giles, 1 Chand. 112. 

3 Stat. Wis. 1843, p. 9, s. 4. 8 Acts. Ind. 1877, Eeg. Sess. 58. 

4 Const. Wis. 1848, art. 6, s. 4. 9 Id. Spec. Sess. 69. 
6 Id. Sched. s. 2. 



14:9 

testant insisted that lie was not eligible, either in April, 1878, or 
in October, 1878. The contestee claimed that, under the act of 
March 12, 1877, no tenure of office, prior to the time when the 
act took effect, could render the officer ineligible ; but, if it could, 
the contestee, having been elected in April, 1878, before the expi- 
ration of his second term, was eligible at that time, and, having 
been eligible when chosen, was entitled to hold for the full term of 
two years from April, 1878. But the court held that the contestee 
was ineligible to the office, after the October election, in 1878 ; that 
ineligibility meant incapacity to hold an office, as well as incapac- 
ity to be elected. 1 In a royal charter declaring that " after such 
oath, so taken, he can and may execute the office of a mayor of 
the borough aforesaid, for one whole year then next ensuing," and 
that no person, who shall have once borne the office of mayor of 
the borough, shall be again elected and preferred to be mayor 
of the same borough, within the space of " three years " next ensu- 
ing the end and determination of his office, the words three years 
import years of office, and not calendar years, and it will be suf- 
ficient if three mayoralties shall have intervened, between the time 
when he ceased to be mayor and the time when he is sworn into 
office the second time. 2 

§ 173. The power of the state legislature to provide for the 
punishment of crimes is not a special grant, or limited authority, 
but is a part of the sovereign legislative power of the state to main- 
tain social order, and to take life, liberty, and all the rights of both, 
when the sacrifice is necessary. And, while there are numerous 
regulations, in the constitution, which operate as restrictions upon 
this power, there are none, relating to eligibility to office, which 
so restrict it. Infliction of disqualification to hold office, as a 
punishment for crime, is not incompatible with that part of the con- 
stitution which provides that each house shall be the judge of the 
qualifications of its own members. 3 In England a person, attainted 
of treason, or felony, being dead, in the law, is disqualified for 
office ; but an indictment for felony causes no disqualification, be- 
fore conviction ; and even after conviction a new election will not 
be ordered, where a writ of error is pending, until the judgment is 

Jeffries v. Kowe, 63 Ind. 592. 3 Barker v. People, 3 Cow. (N. Y.) 686. 

2 Rex v. Swyer, 10 B. & C. 486. 



150 

affirmed. 1 The disqualifications prescribed by sections 1781 and 
1782 of the revised statutes do not take effect, as to United States 
senators, until conviction of the offences therein specified. 2 A 
member elect of the house of representatives of Massachusetts, 
who had been convicted of forgery, and sentenced to pay a fine 
therefor, ten years before his election, but had not been pardoned, 
or procured a reversal of the judgment, was excluded from his 
seat. 3 A member convicted of forgery was suspended, until the 
further order of the house. 4 Where it appeared that a member of 
the house of representatives was under indictment, " for seditiously 
and riotously opposing the collection of public taxes," it was 
ordered that his right to a seat, in the house, be suspended, until 
he should have been tried on the indictment. 5 A member of the 
housejof representatives, who had been convicted of sedition, and 
sentenced to an ignominious punishment, was expelled from the 
house. 6 Where a member of the house of representatives of Mas- 
sachusetts had been convicted, in an indictment for larceny, and 
the verdict had been set aside, a new trial granted, and the indict- 
ment afterwards quashed for informality, the conviction was held 
not to be a disqualification. 7 

§ 174. Under a constitutional provision that " every person shall 
be disqualified from holding office, during the term for which he 
may have been elected, who shall have given, or offered, a bribe, 
threat, or reward, to procure his election," 8 a promise, by a candi- 
date for the office of county judge, made to the voters of the 
county before the election, to pay into the County treasury two 
hundred dollars per annum, out of his official salary, in case of 
his election, is not an offer of a bribe, or reward, to a voter, unless 
the voter influenced by such offer is a tax-payer in the county, or 
was in some way to be benefited by such payment. 9 

§ 175. Disfranchisement for crime, not being a cruel and unusual 
punishment, in the sense of the eighth article of the constitution of 
the United States, may be inflicted by the state legislature, unless 

J May Pari. Pr. (2 ed.) 35. 5 Learned's case, C. S. & J. 14. 

2 Miller's case, Taft. 642. ° Harvey's case, id. 23. 

3 Fuller's case, C. S. & J. 40. 7 Morrell's case, id. 203. 

4 Waite's case, id. 60. On motion of s Const. Oregon, 1857, art. 2, s. 7. 

Mr. Story, afterwards justice of the su- u State v. Dustin, 5 Oregon, 375. 
preme court of the United States. 



151 

prohibited by the state constitution. A state constitution, which 
authorizes exclusion from suffrage for infamous crimes, would seem, 
by implication, to prohibit exclusion therefrom for such crimes as 
are not infamous. But, inasmuch as the right of suffrage is wholly 
distinct from eligibility to office, duelling, which is not an infamous 
crime, may be punished by ineligibilhVy to office, without a viola- 
tion of such a constitutional provision. 1 The New York statute 
to suppress duelling, enacted November 5, 1816, which declares 
that any person, convicted of challenging another to fight a duel, 
" shall be incapable of holding, or being elected to, any post of 
profit, trust, or emolument, civil or military, under this state," is 
constitutional ; and a conviction and judgment of disqualification, 
under it, are therefore legal and valid. 2 Under a constitution 
declaring that : " No person, who, while a citizen of this state, has, 
since the adoption of this constitution, fought a duel, with a deadly 
weapon, sent, or accepted, a challenge to fight a duel, with a deadly 
weapon, either within, or beyond, the boundaries of this state, or 
knowingly conveyed a challenge, or aided, or assisted, in any 
manner, in fighting a duel shall be allowed to vote, or hold any 
office of honor, profit, or trust, under this constitution," 3 a person, 
who has assisted in a duel fought with deadly weapons, may be 
removed from office, upon quo warranto, or an information in the 
nature of a quo warranto, although not previously convicted of 
the offence in a criminal prosecution. 4 

§ 176. Under a state constitution declaring that any person, 
who shall give, accept, or carry a challenge to fight a duel, " shall 
be deprived of the right to hold any office of honor, or trust, in 
this commonwealth, and shall be punished otherwise, as the gen- 
eral assembly may prescribe," 5 and prescribing the following oath 
for all officers : " and I do further solemnly swear (or affirm) that, 
since the adoption of the present constitution, I, being a citizen 
of this state, have not fought a duel with deadly weapons, within 
this state, nor out of it, with a citizen of this state ; nor have I 
sent, or accepted, a challenge to fight a duel, with deadly weapons, 
with a citizen of this state ; nor have I acted as second in carrying 
a challenge, or assisted any person thus offending," 6 it has been 

1 Barker v. People, 20 Johnson, 457. 4 Koyall v. Thomas, 28 Gratt. 130. 

2 Barker v. People, 3 Cow. N. Y. 686. ft Const. Ky. 1850, art. 2, s. 27. 

3 Const. Va. 1867, art. 3, s. 1. 6 M. art. 8, s. 1. 



152 

held that, as to the disqualifications for office, the constitution 
executes itself, without the aid of legislation, and that the board 
for the determination of contested elections, created by law, has 
jurisdiction to adjudicate the question whether a party claiming 
an office has sent, accepted, or carried a challenge, without a con- 
viction before a judicial tribunal of a crime, under a statute enacted 
in pursuance of the constitution. 1 

§ 177. In a contest for the seat of territorial delegate from 
Utah, the question arose whether polygamy could be made a dis- 
qualification for the office of territorial delegate, under the consti- 
tution of the United States. The committee concluded that the 
constitutional provisions prescribing the qualifications of repre- 
sentatives were applicable to territorial delegates, and that those 
provisions did not permit the house, in the exercise of its power 
to judge of the elections, returns, and qualifications of its members, 
to make polygamy a disqualification either for representatives or 
for delegates. 2 

A statutory provision that " no polygamist, bigamist, or any 
person cohabiting with more than one woman, and no woman 
cohabiting with any of the persons described as aforesaid in this 
section, in any territory, or other place, over which the United 
States have exclusive jurisdiction, shall be entitled to vote, at any 
election held in any such territory, or other place, or be 
eligible for election, or appointment, to, or be entitled to hold, 
any office, or place of public trust, honor, or emolument, in, under, 
or for, any such territory, or place, or under the United States," 3 
does not, in effect, prescribe a penalty for the offence of polygamy, 
but merely makes the existing state of polygamy a disqualification 
for voting and holding office. It is not therefore objectionable as 
an ex post facto law. 4 In the forty-third congress the committee 
of elections were instructed, by the house, to investigate a charge 
of polygamy, made against the delegate from the territory of Utah, 
to report the result to the house, and to recommend such action, 
on the part of the house, as should seem proper. They reported 
that the charge was established, and recommended the exclusion 
of the delegate. The minority were of the opinion that it would 

1 Cochran V. Jones, 14 Am. Law. Keg. 3 22 Stat. U. S. c. 30, s. 8. 

N. S. 222. "Murphy ». Kamsey, 114 TJ. S. 15. 

2 Maxwell v. Cannon, Smith, 182. 



153 

be impolitic and dangerous to expel a delegate, or representative, 
having the qualifications prescribed by the constitution, on ac- 
count of alleged crimes or immoral practices, unconnected with 
his official duties or obligations, and recommended the discharge 
of the committee from the further consideration of the resolution. 
The house, by a vote of twenty yeas, nays not counted, refused to 
consider the report of the committee when submitted, and it was 
not afterwards considered. 1 

§ 178. A statutory enactment that, "if any person, holding, or 
expecting to hold, any office, under the laws of this state, sell the 
same, or let it to farm, either in whole, or in part, or contract to 
do so, such person and the person who may buy, take, or farm, 
or contract to do so, shall be thereby disabled from holding said 
office," 2 makes the officer ineligible only for the term covered by 
the sale, letting, or contract. 3 

§ 179. " No person shall be a senator or representative in con- 
gress, or elector of president and vice-president, or hold any office, 
civil or military, under the United States, or under any state, who 
having previously taken an oath, as a member of congress, or as 
an officer of the United States, or as a member of any state legis- 
lature, or as an executive or judicial officer of any state, to support 
the constitution of the United States, shall have engaged in insur- 
rection or rebellion against the same, or given aid or comfort to 
the enemies thereof. But congress may, by a vote of two-thirds 
of each house, remove such disability." 4 A person, who had been 
guilty of such acts of disloyalty that he could not honestly and 
truly take the oath prescribed by the act of July 2, 1862, was 
disqualified for a seat in the house. 5 No person who had been 
engaged in armed hostility to the government of the United States, 
or who had given aid and comfort to its enemies, during the late 
rebellion, was entitled to be sworn as a member of the house, 
unless relieved of his disability. 6 But no man, who had been 
duly elected by the legal voters of his district, was to be excluded 
upon the ground of his personal disloyalty, unless it was proved, 
by clear and satisfactory testimony, that he had been guilty of such 

Gannon's case, Smith, 259. 5 McKee v. Young, 2 Bart. 422. 

2 Code W. Va. c. 7, s. 5. 6 Cases of the Kentucky representa- 

3 Dryden v. Swinburne, 20 W. Va. 89. tives, 2 Bart. 327. 

4 Const. U. S. Amend, art. 14. 



154: 

open acts of disloyalty that he could not honestly and truly take 
the oath prescribed by the act of July 2, 1862. 1 A representative 
elect, being unable to take the test oath prescribed by the act of 
July 2, 1862, at the time of his election, was relieved of his dis- 
ability, after the commencement of his term of office, by act of 
congress, and was then sworn in. 2 

In another case the committee decided that, if no action had 
been taken by the house upon the claim of the sitting member, 
they would have reported that, inasmuch as he had accepted 
and exercised the functions of an office, under the confederate 
government, he could not take so much of the oath prescribed 
by the act of July 2, 1862, as declares that the person taking it 
has neither sought, nor accepted, nor attempted to exercise, the 
functions of any office whatever, under any authority or pre- 
tended authority, in hostility to the United States, without being 
relieved from the disabilities imposed by said act, and would 
have recommended the omission of that part of the oath in the 
case of the sitting member. But they were of the opinion that 
the vote of the house, admitting the sitting member, pending the 
contest, and permitting him to take the oath of July 2, 1862, upon 
representations as to his loyalty then made, was an indication of 
the sense of the house that the fact of his loyalty was the ques- 
tion, and that, this being determined in his favor, he was entitled 
to his seat. And the committee believed that the sitting member, 
conscious of his loyalty, did not regard himself as debarred by the 
facts from taking the oath. 3 The act of July 2, 1862, 4 prescribing 
an oath of office, was not complied with, unless the oath was taken 
before an officer authorized to administer oaths by the laws of the 
United States. A foreign consul, residing in Mexico, had no 
authority to administer the oath. 5 

§ 180. On the 27th of July, 1866, the judiciary committee of 
the senate reported that the only objection to the qualification of 
senator elect David T. Patterson, of Tennessee, was that he had 
held the office of circuit judge, in Tennessee, after that state had 
passed an ordinance of secession ; that his first term of office 
having expired, after the ordinance of secession was passed, he 

'Switzler v. Anderson, 2 Bart. 394. 4 12 Stat. 502. 

2 Boyden v. Shober, id. 904. 5 Otterbourg's case, 5 Ct. CI. 430. 

3 Tucker v. Booker, id. 772. 



155 

was induced, by union men, to become a candidate for re-election, 
and was re-elected in May, 1862 ; that he was himself a firm, 
avowed, and influential union man ; that he allowed himself to 
become a candidate for re-election solely upon the ground that he 
could thereby afford some aid and protection to the union people ; 
that the constitution and judicial system of Tennessee remained 
the same, after the secession of the state as before ; and that no 
laws were administered by him, as judge, except such as were 
in force before the secession of the state. On the same day he 
was admitted to a seat in the senate. 1 It appearing that senator 
elect Philip F. Thomas, of Maryland, had given his son one hun- 
dred dollars, on his departure to enlist as a private in the rebel 
army, the senate, on the 19th of February, 1868, " Resolved, That 
Philip F. Thomas, having voluntarily given aid, countenance, and 
encouragement to persons engaged in armed hostility to the United 
States, is not entitled to take the oath of office, as senator of the 
United States, from the state of Maryland, or to hold a seat in this 
body, as such senator ; and that the president pro tempore of the 
senate inform the governor of Maryland of the action of the senate 
in the premises. 2 In 1862 the senate, by a vote of 11 yeas to 
28 nays, refused to expel Lazarus W. Powell, a senator from 
Kentucky, apparently on the ground that, although he favored 
neutrality, on the part of that state, in the war of the rebellion 
while a great body of the people held that position, afterwards, 
when the people of Kentucky were compelled to take sides, either 
with, or against, the national government, he adhered to the 
union. 3 

§ 181. Where it appeared that a man, who was a member of the 
house of representatives of Massachusetts, in 1785, had been 
indicted, in 1783, for the part he had taken in the war of the rev- 
olution, and had been discharged from such indictment, as justly 
entitled to the benefit of the sixth article of the treaty of 
peace, it was held that he was not disqualified for a seat in the 
house. 4 A petition to exclude a member from the house of rep- 
resentatives of that state, for participation in Shay's rebellion, 
was withdrawn by leave of the house. 5 The house of representa- 

1 Patterson's case, Taft, 271. The vote 3 Powell's case, Taft, 234. 
stood, yeas 21, nays 11. 4 Williams' case, C. S. & J. 19. 

2 Thomas' case, id. 275. The vote 5 Thomas' case, id. 25. 
stood, yeas 27, nays 20. 



156 

tives of Massachusetts held, in 1785, that sympathy with the 
enemy, during the war of the revolution, did not disqualify for 
membership of the house. 1 The admission of Benjamin Stark, of 
Oregon, to the senate, being opposed, on the ground of disloyalty, 
the judiciary committee reported that he was entitled to take the 
oath of office, leaving the question of loyalty for subsequent ad- 
judication. Mr. Trumbull, dissenting from the report of the com- 
mittee, was of the opinion that disloyalty, which was sufficient 
to justify the expulsion of a senator, was sufficient to justify a re- 
fusal to permit him to take the oath of office. The senate approved 
the report of the committee by a vote of 26 to 19, and subse- 
quently refused to expel Mr. Stark by a vote of 16 yeas to 21 
nays. 2 To exclude a representative elect from the house, on the 
ground of disloyalty, the evidence must have clearly shown that he 
had been guilty of such open acts of disloyalty that he could not hon- 
estly and truly take the oath prescribed by the act of July 2, 1862. 3 
After James M. Mason and Robert M. T. Hunter had withdrawn 
from the senate, in 1861, but before their formal expulsion from 
that body, a legislature, chosen by loyal inhabitants of Virginia, 
during the existence of the insurrectionary state government, 
elected Waitman T. Willey and John S. Carlile to take their places. 
The senate, by a vote of 35 to 5, admitted them to their seats. 4 
On the 14th of March, 1861, the senate directed the secretary to 
omit the names of Senators Brown, Davis, Mallory, Clay, Toombs, 
and Benjamin from the roll, their seats having become vacant. 5 
§ 182. An act of parliament declaring that " if any person, hold- 
ing the office of mayor, alderman, or councillor, of any borough, 
shall be declared bankrupt, such person shall, thereupon, immedi- 
ately become disqualified, and shall cease to hold the office of such 
mayor, alderman, or councillor, as aforesaid," 6 and that no person 
shall be qualified to be elected alderman, or councillor, " unless he 
shall be seized, or possessed, of real, or personal, estate, or 
both,'" 7 of an amount specified, does not disqualify an "uncertifi- 
cated bankrupt " from being elected mayor, alderman, or coun- 
cillor. 8 



1 Hubbard's case, C. S. & J. 15. 

2 Stark's case, Taft, 220. 

3 1 Kentucky cases, 2 Bart. 369. 
4 Willey's case, Taft, 202. 



6 Davis' case, Taft, 195. 

6 5 and 6 W. 4, c. 76, s. 52. 

7 Id. s. 28. 

8 Rex v. Chitty, 2 Har. & Woll. 399. 



157 

§ 183. An officer elect, who has not taken the sacrament, within 
a year before his election to a municipal office, is disqualified by 
the corporation act, 1 and, if notice of such disqualification be given 
to the electors, votes afterwards given for him will be thrown 
away, and the candidate, having a majority of the legal votes, will 
be duly elected and entitled to be sworn in ; but, until he shall be 
sworn in, the office will not be " legally filled up and enjoyed by 
him," within the exception of the indemnity act. Therefore if the 
disqualified person, having a majority of the votes, be sworn into 
the office, and afterwards qualify himself, by taking the sacrament 
within the time allowed by the indemnity act, he will be relieved 
of his disability, and his title to the office will be thereby pro- 
tected, such office not having been already vacated by judgment, 
nor "legally filled up and enjoyed by another person." 2 

§ 184. Under an act of parliament, declaring that " any person, 
who shall directly, or indirectly, * undertake, execute, hold, or 
enjoy, in the whole, or in part, any contract, * for or on account 
of the public service, or shall knowingly and willingly furnish, or 
provide, in pursuance of any such * contract, * any wares, 
or merchandise, to be used or employed in the service of the 
public, shall be incapable of being elected, or of sitting, or 
voting, as a member of the house of commons, during the time 
that he shall execute, hold, or enjoy any such contract," 3 a 
clothier, who contracts with the colonel of a regiment, to furnish 
the regiment with army clothing, is not incapacitated for elec- 
tion to the house of commons. 4 To disqualify a person for the 
house of commons, as " executing, holding, or enjoying" a con- 
tract, made for the public service, within 22 Geo. 3, c. 45, s. 1, the 
contract must, at the time of the election, be an executory one. 5 
The disqualification of the statute applies only to cases where the 
contractor knew, or ought to have known, that he was dealing with 
the government. 6 Under a statute, declaring that "no person, 
having, by himself, or partner, any interest, or share, in any contract 
with, or oh behalf of, the township, county, village, town, or city, 
in which he shall reside, shall be qualified to be, or be elected, 
alderman, or councillor, for the same, or any ward therein," 17 and 

*13 Car. 2, st. 2, c. 1, s. 12. 5 Eoyse v. Birley, 38 L. J. C. P. 203. 

2 Kex v. Parry, 14 East, 549. 6 lb. 

3 22 G. 3, c. 45, s. 1. 7 Stat. Can. 12 Vict. c. 81, s. 32. 

4 Thompson v. Pearce, 1 B. & B. 25. 



158 

that " no person, having, by himself, or partner, any interest, or 
share, in any contract with, or on behalf of, the city * in which 
he shall reside, shall be qualified to be, or to be elected, alder- 
man, or councillor, for the same, or for any ward therein," 1 the 
defendant was elected alderman for a ward in a city. It appeared 
that, before the election, he had tendered for some painting and 
glazing required for the city hospital ; that his tender was accepted ; 
and that he had completed a portion of the work, for which he 
had not been paid. A written contract had been drawn up by 
the city solicitor, but it had not been signed by the defendant ; 
and he swore that, before the election, he informed the mayor 
that he did not intend to go on with the work. It was held by the 
court of queen's bench, that the defendant was disqualified as a 
contractor with the corporation ; that it was immaterial whether 
the contract was, or was not, binding on the corporation ; and 
that his disclaimer could have no effect. 2 A retail dealer in bread 
is not ineligible to the office of mayor of a city, in which the mayor 
settles the assize of bread. He may give up his trade. But, if he 
abuse his office, it may be a cause for his removal. 3 

§ 185. Phillip B. Key, a native of Maryland, was an officer in 
the British army, serving in the American colonies after the dec- 
laration of independence. When peace was declared his corps 
was disbanded, and the officers placed upon half pay. In 1785 
he returned to Maryland, being entitled to draw his half pay, in 
1790 settled in Annapolis, and in 1794 was elected to the general 
assembly of Maryland, in which he served for that and several 
succeeding years. Before his first election, in 1794, he sold his 
half pay to his brother-in-law, who drew the same until the period 
of his bankruptcy in 1802, when, being greatly indebted to Mr. 
Key, he re-transferred this half pay, in satisfaction pro tanto for 
the debt, but he was permitted to draw the half pay until his death 
in July, 1805. The half pay for the six months ending in Decem- 
ber, 1805, was drawn by Mr. Key and was the last he received. 
In January, 1806, Mr. Key wrote to his agent in London directing 
him to call at the proper office and, in his name, resign all his 
pretensions to half pay and to rank in the British army, if any 
were supposed to remain to him ; and in October, 1807, he made 

] Stat. Can. 16 Vict. c. 181, s. 25. 3 Rex v. Deane, 2 Chitty, K. B. 370. 

2 Eegina V. Miller, 11 U. C. Q. B. 465. 



159 

a formal resignation, by a letter addressed to the British minister 
at Washington. It did not appear that Mr. Key had ever taken 
the oath of allegiance to the king of England, but it did appear 
that he had taken the oaths required, by the laws of Maryland, of 
persons in the public service of that state. The committee held 
that the fact of his having been a half -pay officer, in the army of 
the king of England, as above set forth, did not destroy his right 
to a seat. 1 

§ 186. By 22 and 23 Yict. c. 5, it was declared that persons 
holding diplomatic pensions were not disqualified from being 
elected to, or sitting in, the house of commons. And under 32 
and 33 Yict. c. 15, pensions, compensations, or allowances, for 
civil services, according to the provisions of the superannuation 
acts, do not disqualify the holder from being elected to, or sitting 
in, the house of commons. 

§ 187. A minister of the gospel, although exempt from taxation, 
was not ineligible to the house of representatives of Massachusetts, 
in 1789. 2 In the year 1801 the house of commons of England 
refused to declare Rev. Home Tooke ineligible because in holy 
orders. But it was thereupon enacted, "that no person, having 
been ordained to the office of priest, or deacon, or being a minister 
of the church of Scotland," 3 should be eligible to parliament. 4 

§ 188. Under a constitution declaring that, "in case of the 
impeachment of the governor, his removal from office, death, resig- 
nation, or absence from the state, the powers and duties of the office 
shall devolve upon the secretary of state, until such disability shall 
cease, or the vacancy be filled," 5 all the functions of the governor 
are wholly suspended, and devolve upon the secretary of state, 
from the time of his impeachment, by the house of representatives, 
and during the trial by the senate. 6 

1 Key's case, C. & H. 224. The com- so amended as to stand as follows : 

mittee reported the following resolution : "Resolved, That Phillip B. Key is en- 

" That Phillip B. Key, having the great- titled to his seat in the house," in which 

est number of votes, and being qualified form it was adopted by a vote of 57 to 52. 

agreeably to the constitution of the 2 Perley's case, C. S. & J. 28. 

United States, is entitled to his seat in 3 41 Geo. 3, c. 63. 

this House." The case having been dis- 4 Perley's case, C. S. & J. 28. 

cussed, in committee of the whole, on 5 Const. Neb. 1866, art. 3, s. 16. 

different days, and once recommitted to 6 Opinion of the Judges, 3 Neb. 463, 

the committee, the resolution was finally (dictum). 



160 

§ 189. Under a constitution declaring that the governor " may, 
on extraordinary occasions, convene the legislature, by proclama- 
tion," that " in case of the impeachment of the governor, his 
removal from office, death, resignation, or absence from the state, 
the powers and duties of the office shall devolve upon the secretary 
of state, until such disability shall cease, or the vacancy be filled," 
and that " if, during the vacancy of the office of governor, the secre- 
tary of state shall be impeached, displaced, resign, die, or be absent 
from the state, the powers and duties of the office of governor 
shall devolve upon the president of the senate," 1 a proclamation 
for an extraordinary session of the legislature, issued by the presi- 
dent of the senate, as acting governor, during the temporary 
absence from the state of the secretary of state, after the removal 
of the governor from office by impeachment, may be revoked by 
the secretary of state, on his return to the state; a proclamation 
by the executive, calling an extraordinary convention of the legis- 
lature, may be revoked by a second proclamation, and the assembly 
of the members thereafter will be unconstitutional, and their legis- 
lative acts void. 2 

§ 190. Among the persons disqualified for membership in the 
house of commons of England are aliens, minors, idiots, lunatics, 
English and Scotch peers, English, Scotch, and Irish judges, 
priests, deacons, ministers of the church of Scotland, Roman 
Catholic clergymen, government contractors, except loan con- 
tractors, bankrupts, persons attainted, or adjudged guilty of trea- 
son, or felony; sheriffs, returning officers, and town clerks, in 
certain cases, and holders of offices, or places of profit, under the 
crown, created since October 25, 1705. Colonial governors and 
deputy governors are incapable of being elected to, or holding 
seats in, the house of commons. 3 Under 6 Anne, c. 7, new offices, 
or places of profit, under the crown, created since October 25, 
1705, and new offices, in Ireland, under 33 Geo. 3, c. 41, not only 
vacate the seats of members who accept them, but also render 
such persons ineligible to the house. The standing counsel of 
the Indian board is not eligible to parliament. 4 The commis- 
sioner of police, for the city of London, is ineligible to member- 

1 Const. Neb. 1866, art. 3, ss. 9, 16, 17. 3 6 Anne, c. 25. 

2 People v. Parker, 3 Neb. 409. 4 29 & 30 Vict. c. 20 ; 14 L. T. N. S. 465. 



161 

ship in the house of commons. 1 County court judges are not 
eligible to parliament. 3 The acceptance of the office of consul, 
or consul-general, has been held to vacate a seat in parliament, 
although the member was considered to be re-eligible. 3 A person 
petitioning, and thereby claiming a seat, for one place, is capable 
of being elected and returned for another place, pending his 
petition. 4 A member of the house of commons, sitting for one 
place, cannot be elected for another, but, in order to be eligible as 
a candidate, must accept the Chiltern Hundreds, or some other 
office under the crown. 5 The acceptance of the office of post- 
master-general vacates a member's seat, but does not disqualify 
him for re-election. 6 The counsel for the secretary of state for 
India cannot be elected to, or hold, a seat in the house of commons. 7 

1 2 & 3 Vict. c. 94, s. 7. 5 May Pari. Pr. 661. 

2 25 & 26 Vict. c. 99, s. 4. 6 29 & 30 Vict. c. 55. 

3 2 Hatsell, 54, n. 7 121 Com. J. 220. 

4 21 Com. J. 136 ; May Pari. Pr. 662. 

11 



CHAPTEK X. 



TEEM OF OFFICE. 



Secs. Secs. 



1. In general . . . ... 191 

2. Commencement of term . 192, 193 



3. Duration and end of term 194-211 

4. Vacancy . ... 211-220 



§ 191. The terms and tenure of civil officers are fixed by consti- 
tutional, or statutory, provisions. In the cases of the president, 
vice-president, senators, representatives, and judges of the United 
States, they are fixed by the federal constitution. In the cases 
of all other civil officers of the United States, they are fixed by 
statute. The terms of the president and vice-president are four 
years, of the senators six years, and of the representatives four 
years. The judges hold their offices during good behavior. 
The terms of the president, vice-president, senators, and repre- 
sentatives commence on the fourth days of March, in the odd-num- 
bered years ; those of the president and vice-president commence 
at the commencement of the successive periods of four years from 
the fourth day of March, 1789. The commencement of these 
official terms was fixed, not by specific constitutional, or statutory, 
provision, but by the following circumstances. The constitution 
having been ratified by eleven of the twelve states, the continental 
congress, in session at New York, on the 13th of September, 1788, 
by resolution, designated the first Wednesday in January, 1789, as 
the day for the choice of electors of president ; the first Wednes- 
day in February, 1789, as the time for the meeting of the electors 
to vote for president ; and the first Wednesday of March, 1789, 
as the time, and the city of New York as the place, for commenc- 
ing proceedings under the new constitution. Accordingly on 
Wednesday, March 4, 1789, congress assembled and commenced 
proceedings under the constitution. But a quorum of both houses 
did not appear until April 6, 1789, when the votes for president 
were counted, and it was found that George Washington was 
elected president and John Adams vice-president. On the 30th 
of April, 1789, President Washington was sworn into office, and 



162 



163 

the new government, so far as its legislative and executive depart- 
ments were concerned, went into full operation. 1 

§ 192. When the law fixes the commencement of a term of office, 
by the designation of a day certain, neither the date of the com- 
mission, nor the time of qualification, will affect the time of the 
commencement, or end, of the term. But when the statute, with- 
out specifying the day on which the term commences, merely 
authorizes the officer to hold until his successor is qualified, the 
full term of the incoming officer commences, in California, on the 
day of his qualification. 2 If the commencement of an official 
term be not otherwise fixed, it will commence, in New Jersey, 
not when the appointee actually assumes the duties of the office, 
but when he has the legal right to do so. 3 Under an act, entitled 
" an act explaining the term of office of the several chosen free- 
holders, in the several counties, within this state," and providing 
" that the powers and authorities granted to the several bodies of 
chosen freeholders, in the several counties within this state, shall 
be considered to continue, in each and every board, until the 
organization of the new board, at their annual meeting, on the 
second Wednesday of May, the election of new members to the 
contrary notwithstanding," 4 the term of office of the chosen free- 
holders commences, not at the time of their election, but at the 
time of their annual meeting, on the second Wednesday in May, 
and continues until the meeting of their successors in office, on 
the second Wednesday of May in the succeeding year. 5 

A statute of Indiana contained this provision : " If any officer, 
of whom an official bond is required, shall fail within ten days, 
after the commencement of his term of office and receipt of his 
commission, or certificate, to give bond, in manner prescribed by 
law, the office shall be vacant." 6 A prosecuting attorney was 
re-elected, in October, 1866, but his commission, although made 
out in November, was not sent to him, nor did he receive it, until 
April 6, 1867, at which time he called for it. On the 12th of 
April, the officer not having filed his bond, the governor decided 
that a vacancy existed, and appointed and commissioned another 

J l Story Const, s. 278. 5 Matter of Highway. 1 Harrison (N. 

2 Brodie v. Campbell, 17 Cal. 11. J.), 91. 

3 Haight v. Love, 39 N. J. 14. 6 Bev. Stat. Ind. G. & H. 164, 

4 Stat. N. J. Feb. 10, 1819. 



164 

person, who immediately qualified and, on the 15th of April, 
entered upon the duties of the office. On an information the 
supreme court of Indiana held that the ten days limited for giv- 
ing bond did not begin to run, until an actual receipt of the 
commission, or the occurrence of such circumstances as would 
warrant the inference that the officer did not intend to accept it, 
or did intend, by his own act, to postpone the day of giving the 
bond. 1 

§ 193. Where it is provided, in the same constitution, that 
" elections, for judicial and other civil officers, shall be held on 
the first Thursday 7 in August, 1870, and forever thereafter on the 
first Thursday in August next preceding the expiration of their 
respective terms of office," 2 that the term of each officer so elected 
shall be computed from the first day of September next succeed- 
ing his election, and that " all laws and ordinances now in force 
and in use in this state, not inconsistent with this constitution, 
shall continue in force and use until they shall expire, or be 
altered, or repealed, by the legislature," 3 and that to the end 
" that no inconvenience may arise from a change of the constitu- 
tion, it is declared that the governor of the state, the members of 
the general assembly, and all officers elected at, or after, the gen- 
eral election of March, 1870, shall hold their offices for the terms 
prescribed in this constitution," 4 an election of judge, held on the 
fourth Thursday of May, 1870, in pursuance of a statute enacted 
in 1869, is valid ; his term will commence at the date of his elec- 
tion, and will continue until the expiration of the regular judicial 
term, at the end of eight years from the first day of September, 
1870. 5 In Kansas, an officer elected to fill a vacancy is entitled 
to take the office as soon as he is elected and qualified. 6 The 
re-election of a clerk of the circuit court, in October, 1865, was 
contested by his competitor. The contest, which continued until 
May, 1870, was decided in favor of the re-elected clerk, who 
sought, by mandamus, to compel the governor to grant him a 
commission for a term of four years from May, 1870, instead of 
October, 1868. The court held that where the title to an office 

1 State v. Hadley, 27 Ind. 496; State 4 Const. Tenn., 1870, sched. s. 1. 

V. Porter, 7 Ind. 204. 6 Brinkley v. Bedford, 9 Heisk. 799. 

2 Const. Tenn. 1870, art. 7, s. 5. " Ellis v. Keddin, 12 Kan. 306. 

3 Id. art. 11, s. 1. 



165 

was derived from popular election, the commission of the exec- 
utive was not necessary to the right to exercise the duties of the 
office ; that a person duly elected to an office, by the people, had 
the right to the possession of the office, at the commencement of 
the term for which he was elected, notwithstanding the pendency 
of a contest, and that a commission issued to him, after the termi- 
nation of the contest, should be for a term commencing, not at 
the termination of the contest, but at the time when he was enti- 
tled to possession of the office. 1 

§ 194. Where the constitution fixes an official term at four 
years, and the statute, providing for the election, limits it to two, 
the officer elected will hold the office for four years. 2 Under a 
constitutional provision, fixing the term of office of the chancellors 
at eight years, and requiring them to be elected by the people, it 
was held that an appointment, by the governor, to fill a vacancy, 
did not confer upon the appointee the right to a full term of eight 
years. 3 The recitals of a certificate of election, as to the duration 
of an office, are, at best, but prima facie evidence, and may always 
be overthrown by competent testimony. The facts, which show the 
duration of the term, may always be proven, and when proven 
are conclusive. 4 A recital, in a certificate of election, that an 
officer, who was in fact elected, to fill a vacancy occurring after 
the expiration of a part of the prescribed term of two years, was 
chosen for two years, will not extend his term of office beyond 
the limit prescribed by law. 5 When the power to appoint an 
officer is conferred, by law, upon the governor of a state, and the 
term of the office is not fixed, the officer holds at the will of the 
governor. 6 The official term of an officer, appointed " to continue 
in office, during the pleasure of the governor for the time being," 
does not expire with the term of office of the governor making 
the appointment. 7 

The president, having called an extra session of congress, to be 
holden on the first Monday of September, 1837, the governor 
of Mississippi issued a proclamation to the sheriffs of the state, 

1 Shannon v. Baker, 33 Ind. 390. 5 Hale v. Evans, 12 Kan. 582. 

2 Westbrook v. Koseborough, 14 Cal. . 6 Williams v. Boughner, 6 Coldw. 486 ; 
180. Leman v. Sutherland, 3 S. & E. 145; 

3 Barry v. Lauck, 5 Coldw. 588. Story Const, s. 1537. 

4 Hale v. Evans, 12 Kan. 582. 7 Kaufman v. Stone, 25 Ark. 336. 



166 

in these words : " Whereas the president of the United States 
has convoked congress, to meet on the first Monday of September 
next; and whereas a vacancy has occurred in the representa- 
tion of the state of Mississippi, in the house of representatives 
of the congress of the United States, by the expiration of the 
term of service for which Messrs. Claiborne and Gholson were 
elected, I do therefore issue this writ, authorizing and requiring 
you to hold an election, in your county, on the third Monday 
and day following in July next, for two representatives to congress, 
to fill said vacancy, until superseded by the members to be elected, 
at the next regular election, on the first Monday and day follow- 
ing in November next ; and I do moreover enjoin you to conduct 
the same, in all respects, conformably to law, and make due return 
thereof to the secretary of state." The committee held that a 
vacancy existed when the proclamation was issued ; that the clause 
of the proclamation, which limited the term of the representatives 
to be chosen, at the special election, was illegal and void, but did 
not invalidate the residue of the proclamation, and that the repre- 
sentatives, then chosen, were entitled to their seats for the entire 
term of the twenty-fifth congress. They reported, and the house 
adopted a resolution, declaring Messrs. Gholson and Claiborne 
duly elected members of the twenty -fifth congress, and, as such, 
entitled to their seats. At the regular election held in November, 
1837, the sitting members not being candidates, Messrs. Prentice 
and Word were chosen, the whole vote being less than one-half 
that polled in July. The committee having reported the facts, 
without recommendation, the house rescinded the resolution 
adopted at the extra session, and ousted the sitting members, but, 
at the same time, rejected the contestants. And the governor of 
Mississippi was notified that the seats were vacant. x 

§ 195. It was provided in the ordinance of the constitutional 
convention of Georgia, adopted March 10, 1868, that an election 
should be held, beginning on the 20th day of April, 1868, for the 
ratification, or rejection, of the state constitution, and for the 
choice of governor, members of the state legislature, representatives 
in congress, and all other officers to be elected under the constitu- 
tion ; and also that the persons so elected should enter upon the 
duties of their several offices when authorized so to do by acts of 

1 Case of Claiborne and Gholson, 1 Bart. 9. 



167 

congress, or by the order of the commanding general, and should 
continue in office, until the regular succession provided for, after 
the year 1868, and until their successors should be regularly elected 
and qualified, so that said officers should, each of them, hold their 
offices as though they were elected on the Tuesday after the first 
Monday of November, 1868, or elected, or appointed by the gen- 
eral assembly next thereafter. At the election held under this 
ordinance, the voters deposited single ballots for representatives 
in congress ; and the representatives elect presented their certifi- 
cates of election, executed by General Meade, and took their 
seats in the fortieth congress, in July, 1868. Afterwards, in 
November, 1868, the governor of Georgia issued commissions to 
the same persons, based on the same elections, and purporting to 
authorize them to " take session in congress." The persons 
holding these commissions claimed that, under the election of 
April 20, 1868, and the ordinance cited, they were entitled to 
seats in the forty -first congress, notwithstanding the fact that they 
had, by virtue of the same election, held seats in the fortieth 
congress. The committee concluded that the governor had no 
authority to issue the commission, under the ordinance, and that 
his commission did not confer any rights not already conferred by 
the certificate of General Meade, which covered the same ground ; 
that the term of office of these representatives commenced with the 
readmission of the state of Georgia to representation in congress, 
in July, 1868, and ended with the expiration of the fortieth con- 
gress ; that the electors only chose them for a single congress, and 
the ordinance of the convention could not extend the term so as 
to include the forty-first congress. The report of the committee 
was sustained by the house, and the claimants were not admitted 
to the forty-first congress. 1 

§ 196. The constitution of the state of Indiana, adopted in 1851, 
contained the following provisions : " There shall be elected in each 
county, by the voters thereof, at the time of holding general elec- 
tions, a clerk of the circuit court, auditor, recorder, treasurer, 
sheriff, coroner, and surveyor. The clerk, auditor, and recorder 
shall continue in office four years ; and no person shall be eligible 
to the office of clerk, recorder, or auditor, more than eight years, 
in any period of twelve years. 2 Vacancies, in county, township, 

Georgia cases, 2 Bart. 596. 2 Const. Ind. 1851, art. 6, s. 2. 



168 

and town offices, shall be filled in such manner as may be pre- 
scribed by law. 1 The general assembly may confer upon the 
boards doing county business, in the several counties, powers of a 
local administrative character." 2 An act of the legislature of 
Indiana, approved May 13, 1852, contained the following provi- 
sions : "In case a vacancy occurs in the office of county commis- 
sioner, such vacancy may be filled by an eligible person, to be 
appointed by the judge of the court of common pleas of such 
county. 3 The board of county commissioners shall fill all other 
vacancies, in county or township offices, except justices of the 
peace, and such township or other offices, the vacancies in which 
are otherwise provided for; and such appointment shall expire 
when a successor is elected and qualified, who shall be elected at 
the next general or township election, as the case may be, proper 
to elect such officers." 4 "Every person elected to fill any office, 
in which a vacancy has occurred, shall hold such office for the 
unexpired term thereof." 5 A clerk of the circuit court, who had 
been commissioned, for a term of seven years, in June, 1852, 
under the old constitution, died in September, 1854, and the 
vacancy was filled, by appointment, by the county commissioners, 
until the general election held in October, 1854, when the 
appointee of the commissioners was chosen by the people. The 
governor commissioned the clerk so elected for a term of seven 
years, from June 15, 1852. The clerk, having qualified and 
entered upon the duties of the office, under this commission, 
applied for a mandamus to compel the governor to give him a 
commission for a term of four years from October, 1854. The 
governor answered that the commission should have been issued 
for a term ending June 15, 1856, and had been issued, for a longer 
term, by a mistake of the secretary of state. The court held that, 
although the deceased clerk had been commissioned, under the 
old constitution, for a term of seven years from June, 1852, his 
term expired, under the new constitution, November 1, 1855, the 
day on which it took effect ; that the term of the clerk, elected by 
the people in October, 1854, began at the date of the election, and 
continued for four years ; and that the seventh section of the act 

1 Const. Ind. 1851, art. 6, s. 9. 4 Kev. Stat. Ind. 1852, c. 115, s. 4. 

2 Id. s. 10. 6 Id. s. 7. 

3 Rev. Stat. Ind. 1852,, c. 115, s. 3. 



169 

of May 13, 1852, so far as it assumed to regulate, or abridge, the 
term of office of persons elected to the office of clerk of the circuit 
court, in cases of vacancies, was unconstitutional and void. The 
order of the circuit court, awarding a peremptory mandamus to 
compel the governor to issue a new commission, for a term of four 
years from the date of election, was affirmed by the supreme 
court. 1 

§ 197. A senator, appointed, by the governor of a state, to fill a 
vacancy occurring in the office of United States senator, is entitled 
to hold his seat during the next session of the legislature of the 
state, unless the legislature shall fill the vacancy, by an election, 
and the senate shall be officially informed thereof. 2 A senator, 
holding his office by executive appointment, has a right to occupy his 
seat until the vacancy is filled by the legislature at its next session. 
To fill such vacancy it is necessary, not only that there should 
be an election, but also an acceptance of the office, and that such 
acceptance should appear by the presentation to the senate of the 
credentials of the member elect, or other official information of 
the fact, whereupon the office of the sitting member terminates. 
When the senator elect is present and ready to qualify, there is 
an express acceptance of the appointment, and when his creden- 
tials are presented, in his absence, his acceptance may be fairly 
implied. 3 

§ 198. It was provided by statute as follows : " At the first 
annual election for members of the general assembly of this state, 
after the passage of this act, and at such election every third year 
thereafter, there shall be chosen, by the qualified electors of said 
county of Ocean, one person, to be county collector of said county, 
who shall hold said office for the term of three years. * In case of 
any vacancy occurring in said office, by death, or otherwise, such 
vacancy shall be supplied by the board of chosen freeholders of 
said county, at a special meeting of the said board, to be held 
within fifteen days thereafter, until the general election next suc- 
ceeding the happening of the death of said county collector, and 

1 Governor v. Nelson, 6 Porter (Ind.), 3 Case of Winthrop and Rantoul, 1 
496. Bart. 607; Gong. Globe, 31 Cong. 2 sess. 

2 Phelps' case, Taft, 16; Williams' pp. 461-4. 
case, id. 23 ; Smith's case, id. 4, Senate 

Journal, 1809, p. 381 ; 1 Bart. 608. 



170 

the person elected, or appointed, to supply such vacancy, may, 
upon giving bond at the said meeting, as hereinafter provided, 
enter upon the duties of the office, and shall continue to hold the 
same until his successor shall have been elected, at the next gen- 
eral election as aforesaid, and given bond." 1 A. was elected to the 
office, in 1873, and held until after the general election in 1874, 
when he resigned ; B. was elected to fill the vacancy, by the board 
of freeholders, in 1874, and, at the next general election by the 
people, held in 1875, C. was elected. It was held by the supreme 
court of New Jersey that the election of C, in 1875, was for the full 
term of three years from the time of the election, and not for A.'s 
unexpired term. 2 

§ 199. The legislature may, by express words, abridge the term 
of an office created by it, or may specify an event upon the occur- 
rence of which it shall end. 3 If the tenure of an office be fixed, for 
a prescribed term, " and until a successor shall be elected, or ap- 
pointed, and qualified," neither a resignation, nor the expiration 
of the term, nor the election, or appointment, of a successor, will 
vacate the office, or impair the power of the incumbent, until the 
successor is duly qualified. 4 If the incumbent of an office resign, 
pending a contested election, and the governor appoint his suc- 
cessor, the term of the governor's appointee will expire, either 
when the party finally adjudged to be entitled to the office shall 
have duly qualified, or when the person chosen at the next general 
election shall have duly qualified. 5 An act, dividing the state of 
Indiana into judicial circuits, contained the following section : 
" On the second Tuesday of October, 1873, a general election shall 
be held, in the proper counties, to elect judges and prosecuting 
attorneys, in place of such judges and prosecuting attorneys as 
may be holding their office by appointment of the governor, and 
such election shall be held and conducted under the laws and 
regulations governing general elections in this state." 6 It was 
held, by the supreme court of the state, that this section provided 
for electing, on the second Tuesday of October, 1873, prosecuting 
attorneys for such new circuits only as had no prosecuting attor- 
neys residing within them when the act took effect ; that, upon 

'Stat. N. J. 1873, c. 332, ss. 1, 2. "People v. Supervisor, 100 111. 332. 

2 Jimison v. State, 42 N. J. 159. 5 State v. Jarrett, 17 Md. 309. 

3 People v. Whitlock, 92 N. Y. 191. 6 Stat. Ind. Kev. 1876, 390. 



171 

the resignation of a prosecuting attorney, residing within a circuit 
created by this act, and the appointment of his successor by the 
governor, after the act took effect, but before the second Tuesday 
of October, 1873, such appointee was entitled to hold the office 
until the election of his successor, on the second Tuesday of 
October, 1874 ; and that the election of a successor to such ap- 
pointee, on the second Tuesday of October, 1873, was invalid. 1 

Under a state constitution providing for an elective judiciary, and 
directing that, " in case of vacancy in any judicial office, it shall 
be filled by appointment of the governor, until the next regular 
election that shall occur more than thirty days after such vacancy 
shall have happened," 2 it was held that the appointee of the gov- 
ernor was not entitled to retain the office until the expiration of 
the current term, but choice was to be made, by the electors, at 
the first election held, in conformity with established law or rule, 
more than thirty days after the happening of the vacancy. 3 The 
laws of war authorize the occupying conqueror to organize and 
maintain government, over the people of the enemy's country, 
while the belligerent occupation continues. The term of an officer, 
elected, under military authority, in the state of Tennessee, in 
1864, expired upon the election of a person, to the same office, 
under the laws of the state, in 1866. He was not entitled to hold 
for a full term. 4 

§ 200. The schedule of the constitution of Kansas contained 
the following provision : " The governor, secretary, and judges 
and all other officers, both civil and military, under the territorial 
government, shall continue in the exercise of the duties of their 
respective departments, until the said officers are superseded, 
under the authority of this constitution." 5 By another section 
of the schedule the governor, elected under the constitution, was 
required, upon receiving official information of the admission of 
Kansas into the union, to make proclamation thereof, and to con- 
vene the legislature elected under it. 6 Kansas was admitted to the 
union January 29, 1861, and the proclamation was issued Febru- 
ary 9, 1861. On a motion for a writ of mandamus, to compel 
obedience to an act of the territorial legislature, passed January 

1 Mozer «. Long, 64 Ind. 189. 4 Isbell v. Farris, 5 Coldw. 426. 

2 Const. Kan. 1859, art. 3, s. 11. 5 Const. Kan. 1859, Sched. s. 3. 

3 State v. Cobb, 2 Kan. 32. c Id. s. 23. 



172 

31, 1862, it was held, by the supreme court of Kansas, that the 
provision of the schedule, empowering the territorial officers to 
act as state officers, until superseded by officers chosen, under the 
constitution, was a valid provision, and applied to members of the 
territorial legislature ; and that the legislature of the territory was 
not superseded by the state legislature chosen, under the consti- 
tution, before the proclamation of the governor was issued. * 

§ 201. The state law was in these words: "All such officers, elected 
at any special election, shall hold their offices until the next gen- 
eral election, on the first Tuesday in May, and until their successors 
shall be elected and qualified. After the first general election, 
said officers shall respectively hold their offices for two years 
each. The councilmen shall be chosen by the legal voters of their 
respective wards ; and one councilman from each ward, to be 
determined, by lot, at the first regular meeting after the election, 
shall hold his office for two years ; and the other, to be determined 
in like manner, shall hold his office for four years ; and, biennially, 
thereafter, one councilman shall be elected by the legal voters of 
each ward." 2 It was held that, under this statutory provision, a 
person, elected to fill a vacancy in the office of councilman, was 
entitled to hold the office during the unexpired term of his 
predecessor. 3 An act organizing a new county, designating a 
special day for the first election of county officers, and providing 
that they shall hold office " for two years and until their successors 
are chosen and qualified pursuant to law," 4 and making no other 
provision respecting the terms of the officers, or the times for the 
election of their successors, is to be construed in connection with 
the general statutes regulating the elections and terms of officers, 
and when such general statutes provide that county officers shall 
be elected, at general elections, in the odd-numbered years, and 
shall enter upon the duties of their offices on a designated day 
after their election, 5 the- officers first chosen hold until the first 
general election for county officers after the expiration of the term 
of two years fixed by the organic act ; and an election held before 
that time is void. 6 

1 State v. Meadows, 1 Kan. 9; State v. 4 Stat. Cal. 1853, p. 58, s. 9. 

Hitchcock, id. 178. 6 Id. 1851-3, p. 241, s. 14. 

9 Rev. Stat. Ind. G. & H. 216. 6 People v. Church, 6 Cal. 76. 
3 State v. Mayor, 28 Ind. 248. 



173 



§ 202. Under a constitution declaring that " when any office 
shall, from any cause, become vacant, and no mode is provided, 
by the constitution and laws, for filling such vacancy, the governor 
shall have power to fill such vacancy, by granting a commission, 
which shall expire at the end of the next session of the legislature, 
or at the next election by the people," 1 when the statute vests the 
appointment to an office in the governor, with the advice and con- 
sent of the senate, and the term of the incumbent expires during 
a recess of the legislature, and the governor appoints a successor, 
the appointment vests in the appointee a right to hold for the full 
term, subject only to be defeated by the non-concurrence of the 
senate. A subsequent appointment, made by the governor, with 
the advice and consent of the senate, before action had by the 
senate upon the first, will be void. 2 Under a statute requiring 
the clerk of the circuit court to be chosen, by the electors of the 
county, for a term of seven years, and directing that, in case of 
vacancy occasioned by resignation, death, or removal from office, 
a successor shall be chosen for the unexpired term, with a proviso 
that nothing therein contained " shall prevent the circuit courts, 
in each county, from appointing a clerk pro teinpore, until a qual- 
ified clerk may be duly appointed," the judges have the power to 
appoint a clerk pro tempore, to hold his office until the next an- 
nual election, or until an appointment can be regularly made, but 
no longer. Their certificate of appointment, whatever its purport 
may be, can confer no rights upon the appointee which the court 
is not authorized to confer. 3 A clause in a charter, which directed 
that the aldermen should be chosen annually, was held to be 
directory, and not to determine the office at the end of the year 
after election ; and it was held that the person, legally elected and 
sworn into office, should continue until his death, or removal, in 
the same manner as a person elected to the office of mayor. 4 It 
was held by the house of lords that, in the absence of any proof 
of usage to the contrary, the appointment of clerk to the conven- 
tion of royal burghs (a body of anomalous character, partaking, 
in some respects, of corporate qualities), without any express term 
of endurance, did not necessarily import an appointment for life. 5 



1 Const. Cal. 1850, art. 5, s. 8. 

2 People v. Mizner, 7 Cal. 519. 

3 Brower v. O'Brien, 2 Ind. 423. 



4 Brown v. Foot, 2 Bro. P. C. 289; 
Pender v. Kegem. id. 294. 

6 Koyal Burghs v. Cunningham, 1 Bell, 
628. 



174 

§ 203. A statute of Indiana contained the following provision : 
" There shall be elected, by the general assembly of the state of 
Indiana, at the present session thereof, three directors of the state 
prison, one of whom shall hold his office for two, and two of 
whom shall hold their offices for four, years, from and after their 
election aforesaid, and until their respective successors shall be 
elected, or appointed, and qualified. After the first election of 
directors, as aforesaid, as the term of office of any director shall 
expire, his successor shall be elected, in like manner, for the term 
of four years, and until his successor shall be elected, or appointed, 
and qualified. Whenever any vacancy shall occur in the office of 
director, by death, resignation, or otherwise, or by the failure of 
the general assembly to elect, as aforesaid, the governor shall 
appoint a person to fill such vacancy, to serve until the next meet- 
ing of the general assembly." 1 Upon the resignation of a director 
who had been chosen, by the legislature, in 1867, A. was elected, 
in his place, in 1869. He was commissioned, by the governor, 
for a term of four years. In 1871 B. was elected to the same office, 
by the legislature. Upon an application for a mandamus to com- 
pel the governor to issue a commission to B., it was held that the 
clause, " after the first election of the directors, as aforesaid, as the 
term of office of any director shall expire, his successor shall 
be elected, in like manner, for the term of four years, and until 
his successor shall be elected, or appointed, and qualified," applied 
to the case where the director had served for the full term fixed 
by law, but not to the case where he had resigned, or vacated, the 
office, before the expiration of the full term ; that A. therefore 
was not chosen for a full term of four years ; that, under a statu- 
tory provision, then in force, that " every person elected to fill any 
office, in which a vacancy has occurred, shall hold such office for 
the unexpired term thereof," 2 the election of A. was to be con- 
sidered as an election to fill the vacancy occasioned by the resig- 
nation of his predecessor ; and that B., having been chosen for 
the succeeding term, was entitled to a commission for that term. 3 

§ 204. A constitutional provision that " the general assembly, in 
cases not provided for in this constitution, shall fix the terms of 
office and the compensation of all officers ; but no change therein 

'Rev. Stat. Ind. G. & H. 464. 3 Barker v. Kirk, 33 Ind. 517. 

2 Id. 672. 



175 

shall affect the salary of any officer, during his existing term, un- 
less the office be abolished," 1 imposes no restraint on the power 
of the legislature to extend the tenure of an officer, beyond his 
term, and until his successor is qualified, in a case where the dura- 
tion of such tenure is not limited by the constitution. 2 Under 
a constitution, declaring that, " in case the office of any judge 
shall become vacant, before the expiration of the regular term, for 
which he was elected, the vacancy shall be filled, by appointment, 
by the governor, until a successor is elected and qualified ; and 
such successor shall be elected for the unexpired term, at the first 
annual election that occurs more than thirty days after the 
vacancy shall have happened," 3 the term of office of a judge, 
elected to fill a vacancy, is limited to the unexpired portion of the 
regular term, in which such vacancy occurs ; and a commission, 
purporting to confer official authority, for a longer term, is a 
nullity. In the absence of a constitutional provision authorizing 
judges to hold over until their successors are elected and qualified, 
the judge, so elected to fill a vacant term, is incapable of exercis- 
ing the functions of his office after the expiration of such term. 4 
In a state constitution it was provided as follows : " All civil 
officers, appointed by the governor and senate, shall be nominated 
to the senate, within fifty days from the commencement of each 
regular session." 5 "All officers, civil and military, now holding 
office, whether by election, or appointment, under the state, shall 
continue to hold and exercise their offices, according to their 
present tenure, unless otherwise provided, in this constitution, 
until they shall be superseded according to its provisions, and 
until their successors be duly qualified." 6 This constitution also 
vested the appointment of justices of the peace in the governor, 
by and with the advice and consent of the senate. The supreme 
court of the state decided that justices of the peace, who were 
elected in November, 1863, and were in office when the constitu- 
tion of 1864 was adopted, were authorized to continue to hold 
their offices until there should be regular appointments, by the 
governor and senate, superseding them, and that the concurrent 
action of the senate, on such appointments, could not be had at 

1 1 Const. Ohio, art. 2, s. 20. 4 Scarff v. Foster, 15 Ohio St. 137. 

2 State v. Howe, 25 Ohio St. 588. 5 Const. Md. 1864, art. 2, s. 16. 

"Const. Ohio, art. 4, s. 13. 6 Id. art. 12, s. 6. 



176 

a special, but only at a regular, session of the legislature. 1 When 
the commission of a county judge, chosen by the legislature, 
states that he was elected for the unexpired term of his prede- 
cessor, and, at the expiration of that term, another person is 
elected, by the legislature, to the same office, a decision, by the 
supreme court of the state, that the terms of all county judges, 
whether elected to fill vacancies, or not, continue for six years, 
entitles the former to the office, and his right is not abandoned, 
or forfeited, by practice, as an attorney, in the court of the 
latter. 3 

§ 205. A constitutional provision that " sheriffs, coroners, reg- 
isters of deeds, and district attorneys, shall be chosen, by the 
electors of the respective counties, once in every two years, and 
as often as vacancies shall happen," has been held to fix the term 
of office at two years. And it has been held that such term can- 
not be prolonged, or shortened, by the legislature ; and that a 
person, legally elected to fill a vacancy in such office, holds, not 
merely during the unexpired term of his predecessor, but for the 
full constitutional term ; that the vacancy so filled is a vacancy in 
the office, and not in the term current at the happening of the 
vacancy. 3 Under a statute authorizing the election of directors 
of the penitentiary, by the general assembly, and providing that, 
" after the first election of directors as aforesaid, as the term of 
office of any director shall expire, his successor shall be elected in 
like manner for the term of four years," and that " whenever any 
vacancy shall occur in the office of director, by death, resignation, 
or otherwise, or by the failure of the general assembly to elect as 
aforesaid, the governor shall appoint a person to fill such vacancy, 
to serve until the next meeting of the general assembly," it has 
been held that a person, elected by the general assembly, to fill a 
vacancy occurring before the end of a term, is entitled to the office 
only for the unexpired portion of such term, and until his succes- 
sor is elected and appointed, or qualified. 4 A county clerk was 
chosen for Pulaski county, Indiana, in August, 1845, for a term of 
seven years. In 1841, the office of county auditor was created by 
law, but the act creating it provided that the duties, thereby 

1 Taylor v Hebden, 24 Md. 202. 3 Attorney-general v. Brunst, 3 Wis. 

2 Bland County Judge, 33 Gratt, 443. 689; People v. tfreen, 2 Wend. 266. 

4 Baker v. Kirk, 33 Iowa, 517. 



177 

enjoined upon auditors, should continue to be discharged by the 
county clerks, until auditors should be elected and qualified. In 
1846, the legislature enacted that nothing in the act of 1841 should 
be so construed as to affect those clerks who, at the passage of 
the act of 1846, were exercising the functions of auditors, in those 
counties where the number of voters did not exceed twelve hun- 
dred ; but that they should continue to perforin the duties of 
auditors, until the number of voters should exceed twelve hun- 
dred. The number of voters having never exceeded twelve hun- 
dred, it was held that the county clerk, elected in 1845, had a right 
to discharge the dutie*s of auditor until the expiration of the term 
of the office of clerk. 1 

§ 206. The constitution of the state of Indiana, in force in 1857, 
contained the following provisions : " The supreme court shall con- 
sist of not less than three, nor more than five, judges, a majority 
of whom shall form a quorum. They shall hold their offices for 
six years, if they so long behave well." 2 " No person elected to 
any judicial office shall, during the term for which he shall have 
been elected, be eligible to any office of trust, or profit, under the 
state, other than a judicial office." 3 " When, during the recess of 
the general assembly, a vacancy shall happen in any office, the 
appointment to which is vested in the general assembly ; or when, 
at any time, a vacancy shall have occurred in any other state 
office, or in the office of judge of any court, the governor shall fill 
such vacancy by appointment, which shall expire when a successor 
shall have been elected and qualified." 4 The revised statutes, 
then in force, contained the following provisions : "A general 
election shall be held annually, on the second Tuesday in October, 
at which all existing vacancies in office, and all offices, the terms 
of which will expire before the next general election thereafter, 
shall be filled, unless otherwise provided by law." 5 "The clerk 
of the circuit court shall, at least twenty days before such election, 
certify to the sheriff of his county what officers are to be elected ; 
and such sheriff shall give fifteen days' notice thereof," 6 in the 
manner prescribed. It was held that these constitutional and 

1 Huddleston v. Pearson, 6 Porter, Ind. 4 Id. art. 5, s. 18. 

337. 5 1 Rev. Stat. Ind. 1852, p. 260, s. 1. 

2 Const. Ind. 1851, art. 7, s. 2. 6 Id. s. 2. 

3 Id. s. 16. 

12 



178 

statutory provisions created two terms, for which, the office of judge 
of the supreme court might be held, viz., a term by election of six 
years, and a term by executive appointment for the time inter- 
vening between such appointment and the qualification of the 
person elected at the general election succeeding the appointment ; 
and that these provisions authorized the election of judges, at the 
general election in October, in the following cases, and in no others, 
viz., when there was a vacancy actually existing, when an appointee 
of the governor was occupying the office, and when the term for 
which an incumbent was elected would expire before another elec- 
tion ; and that a prospective resignation, tendered to take effect 
after the October election of a particular year, but before the next 
election, did not make a case in which it was lawful to hold an 
election before such resignation took effect. 1 

.§ 207. The constitution of Maryland contained the following 
provisions : " There shall be in each county a clerk of the circuit 
court, who shall be elected by the qualified voters of each county, 
* and shall hold his office for the term of six years from the 
time of his election, and until a new election is held." * " In 
case of a vacancy, in the office of clerk, the judge, or judges, of 
the court, of which he was clerk, shall have the power to appoint 
a clerk, until the general election of delegates held next thereafter, 
when a clerk shall be elected to fill such vacancy." 2 It was held, 
by the supreme court of Maryland, that the vacancy to be filled, 
under the last clause, was a vacancy in the office of clerk, and 
not a vacancy in the term of the former clerk, and that the dura- 
tion of the term of the new clerk was six years. 3 

A statute of Indiana contained the following provision : " The 
legal voters of any incorporated city, having a population of over 
six thousand inhabitants, may, at any special election, elect a city 
judge, if the common council, by proper order duly entered of 
record, shall have so directed ; such judge shall have the qualifica- 
tions required for judges of the circuit court, and shall have the 
jurisdiction and powers as in this act provided, and shall hold his 
office for the term of four years, and until his successor shall be 

Middle v. Willard, 10 Ind. 62. case, 11 id. 511; Hughes v. Bucking- 

2 Const. Md. art. 4, s. 14. ham, 5 Sm. & M. 632 ; Powers f>. Hurst, 

s Saulsbury v. Middleton, 11 Md. 296. 2 Humph. 24 ; Boston v. Wilson, 4 Tex. 

See also People v. Green, 2 "Wend. 266 ; 400. 

People v. Contaut, 11 id. 132 ; same 



179 

elected and qualified." 1 On the twelfth day of March, 1875, the 
common council of Logansport adopted the following resolution : 
" Whereas the city of Logansport has a population of over six 
thousand inhabitants, it is ordered that there be elected, at the 
election of city officers to be held on the first Tuesday in May 
of this year, a city judge, to hold his office for the term of four 
years, and until his successor shall be elected and qualified, as 
required by section one of an act to establish courts in cities 
having a population of over six thousand inhabitants." There 
was a general election of city officers in May, 1879 ; but no order 
was made, or notice given, for the election of a city judge, at that 
election, nor were any votes cast for any candidate for that office. 
It was held that the term of the judge, elected in 1875, would 
continue until his successor was elected and qualified. 3 

§ 208. Under a statute authorizing the appointment of seven 
park commissioners by the governor, to hold office for one, two, 
three, four, five, six, and seven years, respectively, as determined 
by lot, and authorizing the governor to fill vacancies, in the board, 
by appointment, it was held that, in the absence of express words 
fixing the terms of the successors of the original appointees, it 
was to be presumed that the legislative intent was to fix the 
term, in every case, at seven years. 3 Under constitutional provi- 
sions that the judges of the supreme court of appeals "shall be 
chosen by the joint vote of the two houses of the general assembly, 
and shall hold their office for a term of twelve years ;" 4 that " for 
each circuit a judge shall be chosen by the joint vote of the two 
houses of the general assembly, who shall hold his office for a 
term of eight years, unless sooner removed, in the manner pre- 
scribed in this constitution," 5 and that " county court judges shall 
be chosen in the same manner as judges of the circuit courts," 6 all 
such judges are elected for full terms, even when chosen to fill 
vacancies occasioned by the death, resignation, or removal, of prior 
incumbents. 7 

^ev. Stat. Ind. 1881, s. 3224. 7 Meredith's case, 33 Gratt. 119. See 

2 Oppenheim v. Kailway Co. 85 Ind. also Saulsbury v. Middleton, 11 Md. 

471. 297 ; State v. Hinson, 1 McCord, 240 ; 

3 Holden v. People, 90 111. 434. State v. McClintock, id. 245 ; Crowell v. 

4 Const. Va. 1867, art. 6, s. 2. Lambert, 9 Minn. 283 ; Keys v. Mason, 

5 Id. s. 9. 3 Sneed, 6; People «. Burbank, 12 Cal. 

6 Id. s. 13. 378 ; Wammach ®. Holloway, 2 Ala. 31. 



180 

The statutes of Indiana provided that " annually thereafter 
one commissioner shall be elected, and shall continue in office 
three years and until his successor is elected and qualified," 1 
and that " every person elected to fill any office, in which a 
vacancy has occurred, shall hold such office for the unexpired 
term thereof ; " 2 and also that " whenever a vacancy occurs in the 
office of commissioner, before the expiration of the term, the 
remaining commissioner or commissioners, together with the audi- 
tor, shall choose some person to fill such vacancy, until the next 
annual election." 3 It was held that, upon the resignation of a 
county commissioner, elected to and holding a full term, his 
appointed successor would hold until the next general election, 
and the person elected, at the next general election, if the full 
term had not then expired, would hold the office, not for a full 
term of three years, but for the unexpired portion of the term of 
the officer who had resigned. 4 

§ 209. The constitution of the state of Maryland contained the 
following provisions : " Sec. 11. All elections for clerks shall be 
certified to the governor, who shall issue commissions to the dif- 
ferent persons, for the offices to which they shall have been 
respectively elected. * Sec. 12. In case of any contested elec- 
tion, the governor shall send the returns to the house of dele- 
gates, which shall judge of the election and qualification of the 
candidates at such election." 5 At an election of clerk of the 
circuit court, Brooke, then the incumbent of the office, and Wid- 
dicombe were candidates. When Brooke transmitted the returns 
to the governor, showing the election of Widdicombe, he notified 
the governor of his purpose to contest the election, and requested 
him to send the returns to the house of delegates, which was the 
tribunal invested witii jurisdiction of the contest. Subsequently 
the governor commissioned Widdicombe. On a petition for a 
mandamus, to vacate the office, the supreme court of Maryland 
held that the governor's action was in harmony with the constitu- 
tion, and that Widdicombe, having given bond and taken the oath, 
as required by law, was entitled to the office, pending the contest 
before the house of delegates ; and that the prior official tenure of 

1 Kev. Stat. Ind. 1881, s. 5733. 4 Parmater v. State, 102 Ind. 90. 

2 Id. s. 5567. 5 Const. Md. 1867, art. 4, ss. 11, 12. 

3 Id. s. 5733. 



181 

Brooke was terminated by the issue of the commission to Widdi- 
combe. 1 

§ 210. In Indiana the term of office of an incoming township 
trustee commences when he is elected and qualified. The power 
and authority of an outgoing trustee end when his successor is 
elected and qualified; and he is no longer an officer dejure, or 
de facto. 2 When the statute fixes the term of office at two years, 
an incumbent, elected by the common council for a full term, with 
knowledge that it was the usage of the common council to elect 
annually, is entitled to claim his full term. His right is not lost 
by an application for re-election, at the end of one year. While he 
retains the office no other person can be elected, before the^ expi- 
ration of the term. 3 A statute declaring that "the governor is 
hereby authorized and directed to appoint, by and with the advice 
and consent of the senate, a gauger of wines and liquors, to reside 
in the city of San Francisco, and to continue in office two years," 4 
was held, in a quo warranto, not merely to have authorized a 
single appointment for two years, but to have created a perma- 
nent office, with terms of two years' duration. 5 

§ 211. In pursuance of the provisions of the organic act, the 
governor of the territory of Wisconsin directed that the first 
election of delegate to congress should be held on the first 
Monday of October, 1836, at which time George W. Jones was 
elected. He took his seat in the house, December 5, 1836. James 
D. Doty was chosen delegate September 10, 1838, at an election 
held in conformity with the organic act and the laws of the territory. 
Mr. Jones had been chosen a delegate from the territory of Mich- 
igan, in October, 1835, and held the position on the fifteenth of 
June, 1836, the date of the passage of the act conditionally 
organizing Michigan into a state. The act of March 3, 1817, pro- 
vided that all delegates should " be elected every second year for 
the same term of two years for which members of the house of 
representatives of the United States are elected." The organic 
act of the territory of Michigan, provided that the delegate should 
hold his office two years from the date of his certificate. The com- 
mittee held that Michigan became a state, upon the passage of the 

Brooke v. Widdicombe, 39 Md. 386. 4 Stat. Cal. 1851-3, p. 894, c. 180, s. 1. 

2 Everroad v. Flatrock, 49 Ind. 451. 5 People v. Addison, 10 Cal. 1. 

3 State v. Brady, 42 Ohio St. 504. 



182 

conditional act of June, 1836, although not admitted to the union 
at that time, and Mr. Jones then ceased to be a delegate for the 
territory of Michigan, and was not such delegate, when he was 
chosen delegate for the territory of Wisconsin, in October, 1836 ; 
that his term, as delegate for the territory of Wisconsin neither 
commenced, nor ended, on the fourth of March, 1837, when the 
twenty -fifth congress expired ; but commenced at his election in 
October, 1836, and expired when Mr. Doty was elected, in Sep- 
tember, 1838 ; that it was doubtful whether, by the act of March 
3, 1817, it was intended that delegates should be elected for the 
same two years as representatives ; that it was more probably the 
purpose that they should hold office for the same length of time, 
since they had previously been chosen annually, and were so far 
the mere creatures of the law that their terms might be long or 
short, and commence and end as congress should direct ; that what- 
ever the purpose of that act might have been, it was controlled 
by the organic act of the territory of Michigan, fixing the term 
at two years from the date of the certificate, and by the organic 
act of the territory of Wisconsin, which fixed no time for the 
commencement of the delegate's term ; and that congress intended 
by the organic act to give the territory of Wisconsin immediate 
representation in congress. 1 

§ 212. The law abhors vacancies in public offices, and, in doubt- 
ful cases, the construction of a statute, fixing the tenure of such 
offices, will be influenced by that consideration. 2 An election to 
a municipal office, to fill a place supposed to have been vacated 
by A., cannot be referred to a place vacated by B. 3 When the 
councillors of a borough did not, immediately after the first elec- 
tion of aldermen, appoint who should go out of office, in the year 
1838, as required by law, 4 but delayed such appointment, until 
October 29, 1838, it was held, by the court of queen's bench, that 
such delay vitiated the election of the aldermen chosen to succeed 
the aldermen so appointed to go out of office. 5 Under a statutory 
provision that " the councillors, immediately after the first election 
of aldermen, shall appoint who shall be the aldermen who shall go out 

] Doty v. Jones, 1 Bart. 16. The house 2 State v. Seay, 64 Mo. 89. 

adopted the report of the committee, 3 Kex'«. Smith, 2 M. & S. 406. 

awarding the seat to Mr. Doty by a vote 4 5 & 6 W. 4, c. 76, s. 25. 

of 165 to 25. 5 Regina v. Alderson, 1 Gale & Dav. 429. 



183 

of office, in the year 1838, and thereafter those who shall go out of 
office shall always be those who have been aldermen for the long- 
est time without re-election," 1 it is necessary that the councillors, 
who elected the first aldermen, should also have appointed who 
were first to go out of office. And where such appointment has 
been made, not by those councillors, but by the councillors of a 
subsequent year, and aldermen have been elected, in place of 
those so appointed to go out, the election is void, even though 
the irregular appointment was not objected to when made. 2 
Yacancies may be occasioned in the house of commons by 
death, elevation or accession to the peerage, acceptance of an 
office of profit, under the crown, acceptance of a nominal office, 
as the Chiltern Hundreds, disqualification at the time of election, 
bankruptcy, election and return for more than one constituency, 
unseating of a member, on petition, and expulsion. 3 

§ 213. The absolute and unconditional repeal of a municipal 
charter abolishes all offices existing by virtue of its provisions, 
and the substitution of another charter, with inconsistent provi- 
sions, without any saving clause in favor of such offices, has the 
same effect. 4 Under a statutory provision that " whenever any 
person elected sheriff shall neglect, or refuse, to give bond and take 
the oath of office, within twenty days after notice of his election, 
the office shall be deemed vacant, and the commissioners' court of 
the county shall appoint a sheriff, as in other cases of vacancy," 5 a 
failure to give a good and sufficient bond, within the time limited, 
occasions a vacancy. 6 And if the commissioners.be, at the same 
time, the tribunal constituted to approve, or disapprove, the official 
bond, no formal trial will be necessary to ascertain whether the 
office has become vacant, by reason of the officer's failure to give 
the required bond. 7 An acceptance of the honorary offices of 
constable of Dover Castle, and lord warden of the Cinque Ports, 
by the first lord of the treasury, vacates a seat in parliament. 8 
When advised, by a member elect, of his disqualification, the 
house will, after expiration of the time limited for presenting 
election petitions, issue a new writ. 9 

J 5 & 6 W. 4, c. 76, s. 25. 5 Kev. Stat. Tex. 1879, s. 4518. 

2 Eegina v. Alderson, 1 Q. B. 878. See "Flatan v. State, 56 Tex. 93. 

Begina v. Alderson, 11 A. & E. 3. 7 Ib. 

3 Bushby, 2. 8 May Pari. Pr. 660. 

4 Crook «. People, 106 111. 237. 9 lb. 



184 

Under a constitution declaring that, " all vacancies, occurring 
in the offices provided for by this article, shall be filled by the 
appointment of the governor, unless otherwise provided for, and 
the appointees shall hold their places until the next regular elec- 
tion," 1 the refusal of an officer elect to accept the office and 
qualify occasions a vacancy, to be filled by executive appoint- 
ment, during the full term of the office. The legislature has no 
power to order an election before the expiration of such term. 2 
The executive authority of the state, upon receipt of the resignation 
of a member of the house of representatives of the United States, 
may issue writs for a new election, without waiting to be informed, 
by the house, that a vacancy exists in the representation of the 
state. 3 The resignation of a representative may be presented to 
the executive of the state, and an election to fill the vacancy held, 
without previous notice to the house of the resignation or vacancy. 4 
The sitting member contended that, the governor and council, 
having, in' pursuance of the law of the state, directed a new elec- 
tion, on the ground that there was no choice at the first election, 
it was not competent for the house to go behind the last election. 
But the majority of the committee were of a different opinion. 5 
In a proceeding, before a competent tribunal, to try the right to 
an office, a governor's appointment, to fill a vacancy, is not con- 
clusive proof of the existence of such vacancy. 6 

§ 214. An election to fill an anticipated vacancy is not valid, 
unless authorized by statute. 1 It was provided, in the revised 
code of Indiana, 8 as follows : " The board doing county business, 
or the clerk of the circuit court in recess, are hereby authorized 
to receive the resignation of justices of the peace ; and, in all 
cases of vacancies in the office of justice of the peace, by resigna- 
tion, removal, or otherwise, the county commissioners (board 
doing county business), on being informed thereof, shall cause 
such vacancies to be filled by election, as directed in this act." 
An election was ordered to be held, in anticipation of two vacan- 
cies, which were to occur ten days after the day on whiten" the elec- 

1 Const. N. C. 1868, art. 4, s. 31. 6 Washburn v. Ripley, C. & H. 679. 

2 People V. Wilson, 72 N. C. 155. See 6 Page v. Hardin, 8 B. Mon. 648. 
also Clark v. Stanly, 66 id. 59 ; People 7 Biddle v. Willard, 10 Ind. 62 ; Nooe 
v. Bledsoe, 68 id. 457. v. Bradley, 3 Blackf. 158. 

3 Mercer's case, C. & H. 41. 8 Rev. Code, Ind. 1831, p. 222, s. 7. 

4 Edwards' case, id. 94. 



185 

tion was held, and precisely five years from the time of the election 
of the justices, whose places were to be supplied, and who had been 
chosen for a term of five years. It was held that the board had 
no authority to make such an order in anticipation of a vacancy. 1 
When a township office is not vacant, it is not in the power of the 
people to elect a person to fill it. If every voter in the township 
were to vote, it would not avail to remove the incumbent or fill 
his place. 2 Under a statutory provision that, "in all cases of 
vacancy, in any office, the length of the term of which is over two 
years, the vacancy shall be filled, by the election of some person 
to the office, at the first general election after such oifice becomes 
vacant ;" 3 an election to fill a vacancy, held after the incumbent's 
resignation is transmitted to the governor and accepted, but be- 
fore it takes effect, is invalid. 4 

§ 215. When a statute, in one section, provides for a new elec- 
tion, in case of a vacancy, occurring through the death of any 
member, or by his accepting any office, or by his becoming a 
party to any contract, and, in the next section, for the case of a 
vacancy arising subsequently to a general election, and before the 
first meeting of the assembly thereafter, " by reason of the death, 
or other of the causes, aforesaid," the words " other of the causes 
aforesaid " refer to the second and third of the causes specified in 
the preceding section ; and a voluntary resignation does not occa- 
sion a vacancy in the sense of the latter section. 5 The constitu- 
tion of Minnesota contained the following provision : " In case 
the office of any judge shall become vacant, before the expiration 
of the regular term for which he was elected, the vacancy shall 
be filled, by appointment by the governor, until a successor is 
elected and qualified. And such successor shall be elected, at 
the first annual election that occurs more than thirty days after 
the vacancy shall have happened." 6 It was held, by the supreme 
court of the state, that, while this provision interdicted the elec- 
tion of a judge for the unexpired term, at an annual election held 
within thirty days after the vacancy occurred, it did not interfere 
with the choice of a judge for the succeeding term, at such elec- 
tion. 7 A contest of an election to the office of chancellor, in 

1 Nooe v. Bradley, 3 Blackf . 158. 4 State v. Berry, 64 Mo. 139. 

2 Commonwealth v. Baxter, 35 Perm. 5 West Riding case, 31 U. C. Q. B. 404. 
St. 263. 6 Const. Minn. art. 6, s. 10. 

3 Stat. Mo. Mch. 13, 1873, s. 1. 7 State v. Black, 22 Minn. 336. 



186 

Tennessee, does not operate to vacate the office, pending the con- 
test, nor to confer upon the governor power to appoint a chan- 
cellor pro tempore? 

§ 216. When it appears, prima facie, that acts or events have 
occurred subjecting an office to a judicial declaration of vacancy, 
the authority designated to fill such vacancy, supposing the office 
to be vacant, may proceed, before procuring a judicial determina- 
tion of the vacancy, and appoint, or elect, according to the forms 
of law, a person to fill such' office; but if, when such person 
attempts to take possession of the office, he is resisted by the 
previous incumbent, he will be compelled to try the right, and 
oust such incumbent, or fail to oust him, in some mode prescribed 
by law. If such elected, or appointed, person find the office in 
fact vacant, and can take possession uncontested by the former 
incumbent, he may do so, and, so long as he shall remain in such 
possession, he will be an officer de facto ; and, should the former 
incumbent never appear to contest his right, he will be regarded 
as having been an officer de facto and de jure ; but should such 
former incumbent appear, after possession has been taken against 
him, the burden of proceeding to oust the actual incumbent will 
fall upon him ; and if, in such proceeding, it be made to appear 
that facts had occurred, before the appointment or election, justify- 
ing a judicial declaration of a vacancy, it will then be declared to 
have existed, and the election or appointment will be held to have 
been valid. 2 

§ 217. A statute of Arkansas contained the following provisions : 
"On the first Monday of May, 1849, and every two years there- 
after, the qualified voters of each county shall elect five commis- 
sioners, who shall constitute a board of internal improvement for 
the county ; said election to be held at the places, in the manner, 
and on the notice now prescribed by law for general elections." 3 
" When any vacancy shall occur, in the office of commissioner, by 
death, resignation, or otherwise, it shall be the duty of the pre- 
siding judge of the county court to order an election to fill such 
vacancy, giving at least twenty days' notice of the time and place 
of holding the same, by putting up at least one advertisement in 
each township." 4 Where no election was held, in a particular 

1 Gold v. Fite, 2 J. Baxt. 237. 3 Stat. Ark. 1848, p. 44, s. 3. 

2 State v. Jones, 19 Ind. 356. 4 Id. s. 4. 



187 

county, on the first Monday of May, 1849, but, under an order of 
the county court, an election was held on the second Monday of 
November, 1849, it was held that no vacancy, within the meaning 
of the act, could occur, which could be filled by order of the 
county court, until the office had been filled by a previous elec- 
tion, under the provisions of the act. 1 

§ 218. A city charter contained the following provision : " There 
shall be, in said city, three police justices, who shall each receive 
an annual salary of $2,000, and hold office for the term of three 
years ; they shall be appointed by the senate and general assem- 
bly in joint meeting ; in case of a vacancy, the governor of the 
state shall fill such vacancy, until the said joint meeting ap- 
point a person to such office, which shall be done at the next, or 
any subsequent, session of the legislature ; and the person so 
appointed, by such joint meeting, shall hold office for three 
years." 2 Subsequently it was enacted as follows : "Any officer of 
any city, in this state, who now holds, or hereafter shall hold, any 
office therein, under any law of this state, which fixes the term 
thereof for a precise and determined period, shall continue to 
hold such office and to exercise the duties of the same, notwith- 
standing the time limited for its continuance shall have expired, 
until his successor has been appointed and qualified." 3 It was 
held, by the supreme court of New Jersey, that, upon the expira- 
tion of the official term of one of the police justices, there was 
no vacancy and the governor could not fill the office. 4 

§ 219. A constitutional provision that " there shall be elected, 
in each county, by the qualified voters thereof, as may be directed 
by law, five justices of the peace ; * they shall hold their offi- 
ces for four years ; and, should a vacancy occur in either of 
said offices, an election shall be held for the unexpired term," 5 
taken in connection with a further constitutional provision that 
"the legislature shall, at the first session thereof, and may, at any 
subsequent session, establish counties, for the convenience of the 
inhabitants," 6 authorizes the legislature, in the organization of 
such new counties, to provide for the election of justices of the 
peace, therein, who shall only hold their offices until the next 

3 Dodd's case, 11 Ark. 152. * State v. Davis, 45 N. J. 390. 

2 Stat. N. J. 1871, c. 424, s. 109. 5 Const. Tex. 1869, art 5, s. 19. 

3 Stat. N. J. Feb. 28, 1881. 6 Id. art. 12, s. 24. 



188 

general election, as if such newly elected officers were elected to 
fill vacancies. 1 

§ 220. A statute of California contained the following provision : 
"All of the present city and county officers, as designated in sec- 
tions four, five, and seven, of this act, and the state harbor 
commissioners, as designated in section eight, shall continue in 
office, during the entire term for which they were elected, and 
until their successors are elected and qualified, as provided for in 
this act : Provided, That any officer elected, or appointed, to fill a 
vacancy, which may, in any manner occur, shall serve only during 
the unexpired term of his predecessor, and until his successor is 
elected and qualified." 2 It was held that this act applied only to 
officials who held office at the time of its passage, and was not 
intended to supply the rule applicable to the filling of vacancies 
which should occur after the expiration of the term of such 
incumbents. 3 

1 Wright v. Adams, 45 Tex. 134. 3 Stat. Cal. April 2, 1866, s. 8. 

2 Tillson v. Ford, 53 Cal. 701. 



CHAPTER XI. 

TENURE OF OFFICE 



Secs. Secs 

1. Induction, oath, bond . 221-223 

2. Holding over . . . 224-231 

3. Refusal or neglect to qualify, 

declination . . . 232-235 



4. Resignation . . . 236-239 

5. Forfeiture . . . 240,241 



§ 221. An induction of a re-elected officer into his office, for 
the new term, before the expiration of the old term, is a nullity, 
and the vacancy occasioned by his death, before the expiration of 
the old term, is a vacancy, not in the new term, but in the old 
term. An officer, appointed to fill the vacancy occasioned by 
his death, holds only until the expiration of the old term, when 
a new vacancy occurs to be filled by a new appointment. x While 
it is irregular to induct an officer into office, before he gives all 
the bonds prescribed by law, the irregularity may be cured by 
a subsequent tender and acceptance of the proper bonds. 2 An 
officer elect, who seeks an extension of the time prescribed, by 
statute, for his qualification, by taking the oath of office, and 
giving official bond, must show some extraordinary reason why 
it should be granted. 3 The induction into office, by the county 
court, under the statute of Tennessee, is a ministerial act. 4 A 
constitutional requirement that " all persons, before entering 
upon the discharge of any functions, as officers of this state, must 
take and subscribe" a prescribed oath, or affirmation, 5 makes the 
taking of the oath a condition precedent to the discharge of the 
official duties of school trustees, and a failure to take the oath, as 
prescribed, occasions a vacancy to be filled according to law. 6 
The bond of a deputy postmaster takes effect from the time when 
it is accepted by the postmaster-general, and not, like the bond of 
a collector of customs, from the time when it is deposited in the 
post office, for transmission to Washington. 7 

1 Worley v. Smith, 81 N. C. 304. 6 Childrey v. Rady, 77 Va. 518 ; Owens 

2 lb. v. O'Brien, 78 Va. 116. 

3 Flatan v. State, 56 Tex. 93. 7 United States v. Le Baron, 19 How. 

4 State v. Wright, 10 Heisk. 237. 73. 



5 Const. Va. 1876, art. 3, s. 6. 



189 



190 

Under a statute declaring that, if the officer elect fail to take the 
oaths, as required, "the placing and election shall be void," 1 it would 
seem that the officer must take the oaths, in pursuance of the statute, 
although they be not tendered to him, and that, in default thereof, his 
election will be void and not voidable only. 3 A charter requiring a 
newly-elected mayor to be sworn into office, before the old mayor, 
in effect requires him to be sworn in, by the old mayor ; the ad- 
ministration of the oath of office, by the clerk, in the presence of 
the old mayor, but against his consent, is void. 3 In quo warranto 
the fact that the defendant is an acting officer, coupled with the 
certificate of election, will raise a presumption that he took the 
official oath and filed the official bond. 4 A statute, requiring an 
officer elect to take the official oath within a prescribed period of 
time, is not applicable to such officer, during the pendency of a con- 
test. 5 A swearing in, under which a party claims to be a free bur- 
gess of a corporation, although defective in law, is a sufficieot user 
of the office to warrant an information, in the nature of a quo war- 
ranto, against him. 6 An oath of office, correctly subscribed W. G. 
Bayles, is not vitiated by the fact that the name is incorrectly 
spelled W. G. Byles, in the body of the oath. 7 

§ 222. Under a statute directing that " every official bond shall 
be approved by the board of supervisors in open session," 8 the 
board, in the approval, or disapproval, of the bond, exercises 
judicial functions ; but, it has no jurisdiction to disapprove a bond, 
on the ground that an officer tendered his resignation before the 
time arrived at which he was authorized by law to take possession 
of the office, or before he had qualified and entered upon its 
duties ; and the supreme court will, on certiorari, review and 
annul an order of a board rejecting a bond on such ground. 9 It 
was provided, in a city charter, that all city officers, who were 
required to give bonds for the faithful performance of official 
duties, should " file their bonds with the city clerk, within fifteen 
days after their election ;" that when a bond should not be so filed, 
within fifteen days after the official canvass of the votes, "the 

1 13 Car. 2, c. 1, s. 2. fi Hex v. Tate, 4 East, 337. 

2 Anon. Free, 474. 7 Hoagland v. Culvert, Spencer N. J. 

s Kex v. Ellis, cited in Kex v. Courte- 387. 
nay, 9 East, 246. 8 Stat. Cal. 1863, p. 572, s. 24. 

4 People v. Clingan, 5 Cal. 389. 9 Miller v. Supervisors, 25 Cal. 93. 

5 People v. Potter, 63 id. 127. 



191 

person so in default should be deemed to have refused said office, 
and the same should be filled by appointment, as in other cases ;" 
that in case a bond so filed should be disapproved, and a satis- 
factory bond should not be filed within fifteen days after such 
disapproval, the person so in default should " be deemed to 
have refused said office, and the same should be filled as above 
provided ;" and that it should be " the duty of the clerk to notify 
all persons elected to office of their election, and unless such per- 
sons should respectively qualify, within fifteen days thereafter, 
the office should become vacant." It was held that these provi- 
sions, respecting the time within which the official bonds were 
required to be filed, were not mandatory, but merely directory; 
that the municipal authorities were empowered, in their discre- 
tion, to declare a vacancy, or to waive the default, as to the time 
of filing the bond, and to accept and approve it when afterwards 
filed ; that the mere default, as to time, would not, of itself, oper- 
ate to vacate the office. 1 When an officer qualifies himself for 
entering upon the duties of the office, by taking the oath and exe- 
cuting the bond required at the time, it is within the constitutional 
power of the legislature to require a new bond, in a larger amount, 
and to require the sureties on such bond to justify, as to their 
sufficiency, in a manner different from that prescribed by the 
statute in force at the time of the election and qualification/ and 
also to provide that, in case of failure to execute such new bond, 
the incumbent shall forfeit the office. 3 

§ 223. A statute of Indiana contained the following provision : 
" If any officer, of whom an official bond is required, shall fail, 
within ten days after the commencement of his term of office and 
receipt of his commission, or certificate, to give bond, in the 
manner prescribed by law, the office shall be vacant." 3 It was 
held that when a relator, in an information in the nature of a quo 
warranto, had failed to file his official bond, within the time pre- 
scribed by law, and had failed to show a sufficient excuse for 
the delay, he should be deemed to have abandoned the office. 4 
When a person gives a bond for the faithful discharge of the 
duties of an office, it is an admission of his appointment, or title, 
to the office, so far as to make him liable for official misconduct, 

1 Chicago v. Gage, 95 111. 593. 3 Rev. Stat. Ind. 1881, s. 5527. 

2 Hyde v. State, 62 Miss. 665. 4 State v. Johnson, 100 Ind. 489. 



192 

or neglect of duty. 1 A surety is not liable on a bond, for the 
faithful performance of an officer's duties, which does not sub- 
stantially comply with the requirements of the law. Such a bond 
is not valid, as a voluntary bond, and, if it were, there could be 
no breach of the condition ; for, so far as the government is con- 
cerned, the officer could not enter upon his duties, without giving 
the statutory bond, and therefore could not violate those duties. 2 
A justice of the peace, in an action against himself, for an arrest, 
under a warrant issued by him, cannot justify, if he had not, 
before such arrest, taken the oath prescribed by the constitution 
of the state. Nor will a subsequent administration of the official 
oath, on the day of the arrest, enable him to do so ; the actual 
time of taking the oath may be shown. Nor will the taking of 
the official oath, under an election to the same office, for the 
previous year, enable him to justify. 3 

§ 224. At common law an officer, whose term has expired, has 
no right to hold over, upon the failure of the proper authorities 
to appoint a successor, at the expiration of his term. 4 Judges 
cannot hold over under the common law, or under the consti- 
tution of Mississippi. 5 The house of lords, overruling the court of 
king's bench, held that where the charter of a municipal corpor- 
ation directed that the aldermen should be chosen annually, the 
requirement was only directory, and did not determine the office 
of alderman, at the end of the year after his election ; but the 
person legally elected, and "sworn into the office, was entitled to 
hold it, until the election of his successor, or his own removal or 
death. 6 Under a statute declaring that, " upon the completion of 
the first elections of councillors, magistrates, and office bearers, to 
be made in all the royal burghs in Scotland, under the provisions 
of this act, and not sooner, the provost magistrates, office bearers, 
and other councillors, now in office in such burghs respectively, 
shall go out, and their whole powers, duties, and functions shall 
cease and determine," 7 if the first election, in any burgh, fail to 
be completed, at the proper time, in consequence of a deficiency 
of the proper number of qualified persons to fill the council, the 

1 Barada v. Carondelet, 8 Mo. 644. 4 People v. Tieman, 8 Abb. Pr. 359. 

2 Jackson v. Simonton, 4 Cr. C. Ct. 5 Christian v. Gibbs, 53 Miss. 314. 
255. 6 Prowse ©. Foot, 2 Brown P. C. 289. 

3 Courser v. Powers, 34 Verm. 517. 7 3 and 4 W. 4, c. 76, s. 18. 



193 

court will not appoint interim managers, because the old magis- 
tracy is continued until the first elections under the new statute 
are completed, and consequently the functions of the old magis- 
tracy do not cease so long as a quorum remains ready to act. 1 

§ 225. When the charter directs that the mayor shall continue in 
office, until his successor is duly elected and sworn, the successor, 
although duly elected, cannot legally act, until sworn ; if he at- 
tempt to do so, judgment of ouster may be rendered against him. 3 
A constitutional provision that " all county officers shall hold 
their offices for the term of two years, and until their successors 
shall be qualified," 3 applies only to the regular terms of the offices, 
not to vacancies, or exceptional cases. 4 A provision that "all 
officers shall continue in office until their successors shall be 
chosen and qualified," 5 made in the schedule attached to a state 
constitution, is applicable, not to officers chosen, or appointed, 
under the new constitution, but only to those chosen, or appointed, 
under the old constitution. 6 A constitutional provision that, 
"judges and all other officers, whether elected, or appointed, shall 
continue to discharge the duties of their respective offices, after 
their terms of service have expired, until their successors are 
qualified," 7 applies to the governor and all other state officers. 8 
Where an officer, having the qualifications prescribed by the con- 
stitution and laws, is duly elected, and is commissioned and sworn, 
and dies before the commencement of his term, the term' of the 
former incumbent then expires, although such term is, under the 
constitution, to continue until the election and qualification of a 
successor. The deceased officer was duly elected and qualified, 
in the sense of such a constitutional provision, and his death 
occasioned a vacancy in the office. 9 A statutory provision that 
an officer " shall continue to discharge the duties of his office, 
although his term of office shall have expired, until a successor, in 
such office, shall be duly qualified," 10 does not apply to a case of 
vacancy occasioned by resignation. 1 1 Where by virtue of constitu- 
tional, or statutory, provisions, an officer holds over until his suc- 

^pence's case, 9 Fac. Dec. 166. 7 Const. Va. 1867, art. 6, s. 22. 

2 Prowse v. Foot, 2 Brown P. C. 289. 8 Lawhorne's case, 18 Gratt. 85. 

3 Const. Kan. art. 9, s. 3. 9 State v. Seay, 64 Mo. 89. 

4 Hagerty v. Arnold, 13 Kan. 367. 10 1 Kev. Stat. N. Y. 117, s. 9. 

5 Sched. Const. Ohio, 1851, s. 10. "Olmsted v. Dennis, 77 N. Y. 378. 
6 Scarff v. Foster, 15 Ohio St. 137. 

13 



194 

cessor is duly qualified, the death of a successor, after election, 
and before qualification, occasions no vacancy, but leaves the 
incumbent still in office. 1 

§ 226. Under a constitution limiting the official term of a justice 
of the peace to two years, but providing that all judicial officers 
shall hold their offices until their successors are elected and quali- 
fied, no vacancy is occasioned, at the expiration of the two years 
by the failure of the people to elect a successor at the proper 
time, but the incumbent will continue to hold the office until his 
successor is elected and qualified. The neglect or refusal of a 
duly elected justice of the peace to qualify will not create a vacancy 
to be filled by executive appointment. 2 The constitution of 
Kansas contained the following clause : " The executive depart- 
ment shall consist of a governor, lieutenant-governor, secretary of 
state, auditor, treasurer, attorney-general, and superintendent of 
public instruction, who shall be chosen, by the electors of the 
state, at the time and place of voting for members of the legisla- 
ture, and shall hold their offices for the term of two years from 
the second Monday in January next after their election, and until 
their successors are elected and qualified." 3 The schedule con- 
tained the following clause : " If a majority of all the votes, cast 
at such election, shall be in favor of the constitution, then there 
shall be an election held, in the several voting precincts, on the 
first Tuesday in December, A. D. 1859, for the election of mem- 
bers of the first legislature, of all state, district, and county officers 
provided for in this constitution, and for a representative in con- 
gress." 4 A statute, approved May 22, 1861, provided for the elec- 
tion of a governor, at the general election, in 1862, and in every 
second year thereafter. On an application for a mandamus, the 
relator, claiming to have been elected governor at the general 
election held in 1862, asked the supreme court of the state to 
compel the state canvassers to canvass the votes cast at that elec- 
tion, and determine and certify the result. But it was decided 
that the governor, elected in 1859, held his office until the second 
Monday of January, 1863, when the governor chosen in 1862 was 
qualified. 5 

1 Commonwealth v. Hanley, 9 Perm St. 2 Boston V. Buck, 8 Kan. 302. 

513; State v. Benedict, 15 Minn. 919; s Const. Kan. 1859, art. 1, s. 1. 

State v. Jenkins, 43 Mo. 261 ; State ». 4 Id. Schedule, s. 11. 

Bobinson, 1 Kan. 17. r ' State v. Bobinson, 1 Kan. 17. 



195 

§ 227. The constitution of California contained the following 
sections : " When any office shall, from any cause, become vacant, 
and no mode is provided by the constitution and laws for filling 
such vacancy, the governor shall have power to fill such vacancy, 
by granting a commission, which shall expire at the end of the 
next session of the legislature, or at the next election by the peo- 
ple;" 1 "nor shall the duration of any office, not fixed by the con- 
stitution, ever exceed four years." 2 A statute was in these words : 
" Each of said commissioners shall hold his office for the term of 
four years, and until his successor is elected, commissioned, and 
qualified, as in this act provided." 3 The supreme court held that, 
under the constitution of the state, it was proper that executive 
officers, elected by the people, should hold over, rather than that 
the duties should devolve upon those in whose election the people 
had had no choice ; that temporary executive appointments were 
admissible only when there were no incumbents of particular 
offices to hold over and perform their duties ; that, if there was a 
vacancy, in any just sense, after the expiration of the term, and 
before the election and qualification of a successor, the statute 
itself filled the vacancy, for the time being, by providing that the 
former incumbent should hold until the election and qualification 
of a successor ; and that a failure to elect a successor to an officer, 
at the expiration of his term, did not create a vacancy, to be filled 
by executive appointment. 4 A township trustee, who was elected 
at the April election, in 1867, and qualified according to law, and 
was re-elected, at the April election, in 1868, but did not then 
give a new bond, did not vacate the office, but was entitled to hold 
it until his successor was elected and qualified. 5 An officer, 
elected for a term of years and until his successor is chosen and 
qualified, may hold over, for an indefinite period, if no successor 
be elected and qualified ; and an averment, in the declaration, that 
the officer continued in office, until a certain time after the expira- 
tion of the term, is equivalent to an averment that no successor 
was elected, until after the expiration of the term. 6 

1 Const. Oal. art. 5, s. 8. term, although the incumbent held un- 

2 Id. art. 11, s. 7. til his successor was elected and quali- 

3 Stat. Cal. 1863, p. 406, s. 1. fied, the office became vacant and could 

4 People v. Tilton, 37 Cal. 614. In be filled by the governor. 
People v. Keid, 5 Cal. 288, it had been 6 State v. Berg, 50 Ind. 194. 

held that, where there was a failure to 6 State v. Spears, 1 Carter (Ind.J 515. 

fill an executive office, at the end of a 



196 

§ 228. Under a constitution declaring that the term of office of 
officers of the executive department " shall commence on the first 
day of January next after this election, and continue, until their 
successors are elected and qualified," 1 in case of an appointment 
by the governor, to fill a vacancy occasioned by resignation, the 
governor's appointee is entitled to hold the office for the unexpired 
term, and, after the expiration of the term, until his successor is 
elected and qualified. 3 Under a city charter providing that, " if 
any person elected, or appointed, to any office, in said city, shall 
neglect to take such oath, for ten days after receiving notice of 
his election, or appointment, or shall neglect, for the like space 
of time, to give such securities as may be required of him, by the 
city council, as hereinafter provided, or may be hereafter required 
by any law, or ordinance, he shall be considered as having declined 
such office, and the same shall be deemed vacant ; and whenever 
any such vacancy shall occur, another election shall be ordered, 
or another appointment made, according to the directions of this 
act," 3 the failure to qualify, according to law, occasions a vacancy, 
but the incumbent of the prior term holds over, until his successor 
is elected, or appointed, and qualified. 4 Where a municipal officer 
was elected, in March, 1879, for a term of two years expiring in 
March, 1881, and during his term of office the time of the munic- 
ipal election was changed, from March, 1881, to the general 
election in November, 1881, and it was enacted that the fragmentary 
term, from March, 1881, to November, 1881, should be filled at 
the general election, in 1880, it was held that an incumbent of the 
fragmentary term, elected in November, 1880, having been chosen 
to fill a legal term, and not a vacancy, held over in case of a 
failure to elect in November, 1881. 5 

§ 229. Under the constitution and laws of the state of South 
Carolina, the term of office of a clerk of court commences on the 
day of the general election, at which he is chosen, and continues 
until the day of the general election, at which his successor is 
legally chosen, and until his successor, then chosen, is legally 
qualified. 6 Under statutes authorizing the governor to appoint 
certain officers, by and with the advice and consent of the senate, and 

1 Const. N. C. 1868, art. 3, s. 1. 4 Brahnam v. Lang, 78 Va. 352. 

2 People v. Mclver, 68 N. C. 467. 5 People fl.Crissey, 91 N. Y. 616. 

3 Stat. Va. 1870-1, c. 139, s. 7. 6 Macoy v. Curtis, 14 S. C. 367. 



197 

authorizing vacancies in offices, in cases where the original power of 
appointment is so vested, to be rilled by the governor, during the 
recess of the legislature, by granting commissions to expire upon 
due appointment by the governor, by and with the advice and 
consent of the senate, a person appointed by the governor, to fill 
a vacancy, is entitled to hold until a new appointment is duly con- 
firmed by the senate. The governor cannot, after the commission 
for the vacancy is issued, revoke the appointment, or restrict the 
right of the appointee to hold the office until the confirmation of 
a new appointment by the senate. * 

§ 230. When the state constitution declares that judges of the 
county courts shall be elected " for the term of four years, and 
shall continue in office until their successors be duly qualified," 2 
and that a county clerk shall be elected for each county, " whose 
term of office shall be the same as that of the presiding judge of 
the county court," 3 the county court clerks do not continue in 
office until the qualification of their successors ; the term of the 
county judges ends at the expiration of the four years, and the time, 
during which they continue in office, after the expiration of their 
official terms, until the qualification of their successors, constitutes 
no part of their official terms. The terms of the county court 
clerks end at the expiration of the four years, and they have 
no right to hold over until the qualification of their successors. 4 
Under a statute declaring that " every office shall become vacant, on 
the happening of either of the following events, before the expira- 
tion of the term of such office, the death of the incumbent, * 
his refusal, or neglect, to take his oath of office, or to give, or 
renew, his official bond, or to deposit, or file, such oath, or bond, 
within the time prescribed by law," 5 the failure of a re-elected 
officer to qualify vacates his office ; he does not hold over under his 
first election. 6 When the constitution declares that the terms of 
all officers, elected, or appointed, under its provisions, shall expire 
on a designated day, and that all laws, not in conflict with the con- 
stitution, shall continue in force until* otherwise provided by law, 
an officer, elected before the adoption of the constitution, cannot 
hold over until the day fixed for the expiration of the terms of 

1 People v. Cazneau, 20 Cal. 504. 4 Leeman v. Hinton, 1 Duv. 37. 

2 Const. Ky. art. 4, s. 30. 5 Stat. Minn. 1878, c. 9. 

3 Id. art. 6, s. 1. 6 Scptt v . King, 29 Minn. 398. 



198 

officers, elected or appointed under its provisions, in defiance of 
an appointment made before that time, according to law. 1 

§ 231. Under a schedule declaring that " officers appointed by 
the courts, shall be filled by appointment, to be made and to take 
effect during the first term of the court held by judges elected 
under this constitution," 2 the fact that no chancery court was 
held, in the county, after the adoption of the constitution, in 1870 
until the year 1871, did not have the effect to continue in office 
a clerk appointed in February, 1865, but the office was then 
vacant and subject to the appointment of the chancellor. 3 Under 
a statute requiring the common council to appoint a health phy- 
sician annually, on the first Monday in May, or within twenty days 
thereafter, declaring that whenever a vacancy shall occur in any 
office, the council may fill it, and authorizing elected officers, but 
not appointed officers, to hold over, until the appointment and 
qualification of their successors, an incumbent of the office of 
health physician is not entitled to hold over, for another year, 
upon failure of the council to appoint his successor within twenty 
days after the first Monday in May. 4 An incumbent of an office, 
who is a candidate for re-election, and is thereupon returned 
elected, and recommissioned, and accepts the new commission and 
enters upon the discharge of the duties of the office, under the last 
election and commission, cannot, in the event of a judgment of a 
competent tribunal declaring the second election void, be heard 
to claim a right to hold over, under the former election ; the office 
will be vacated. 5 Upon the election, failure to qualify, and resig- 
nation, of a newly chosen officer, and the appointment and quali- 
fication of his successor, the term of the former incumbent of the 
office ends. 6 

§ 232. A statute requiring an officer elect to qualify, within a 
prescribed period of time, will be construed as directory only, in 
a case where, from reasons beyond his control, he cannot qualify 
within the time prescribed ; but such construction will not be 
given, in case of a neglect* or refusal, to qualify. 7 The "notice 
of his election," within five days from and after which the mayor 

Robinson v. White, 26 Ark. 139. 5 Handy v. Hopkins, 59 Md. 157. 

2 Const. Tenn. 1870, Sched. s. 1. 6 State v. Cocke, 54 Tex. 482. 

3 Gold «. Fite, 2 J. Baxt. 237. 7 Flatan v. State, 56 Id. 93. 

4 Saunders v. Grand llapids, 46 Mich. 
467. 



199 

elect is required to " accept such office, by making and subscrib- 
ing the declaration," 1 is a notice acquired either by being present, 
at the election, or by official notification ; where, therefore, it ap- 
pears that the party elected has received no notice, in either of 
these forms, but has received information of his election, in 
a private manner, he is not required to subscribe the declaration 
within five days after being so informed. 3 When a member elect 
of the house of representatives of the state of Massachusetts failed 
to qualify, for nearly a month after the commencement of the 
session, and made an indefinite response to an inquiry as to his 
purpose, addressed to him by the committee on elections, pursuant 
to an order of the house, the house declared the seat vacant and 
ordered a new election. 3 The refusal of a member of the house 
of representatives of Massachusetts to appear, in his place, in 
compliance with a requirement of the house, was held to be a 
sufficient ground for his expulsion. 4 The right of a free burgess 
of a borough otherwise duly qualified cannot be impeached on the 
ground that the officer, before whom he was sworn in, was an 
officer, not dejure, but only de facto * 

§ 233. Under statutes declaring that, " all offices in the state are 
vacated, by failing to apply for and obtain commissions, or certifi- 
cates, or by failing to qualify, or give bond, or both, within the 
time prescribed by the laws and constitution," 6 and that the 
official bonds " must be filed within forty days after the election, 
or appointment, of the officer," 7 the simple fact that an officer 
elect does not give his bond and take the oath of office, within 
the time prescribed by law, is not sufficient to work a forfeiture of 
his right to the office ; it must appear to have been through the 
fault of the officer that the bond was not given and the oath not 
taken, within the time limited. 8 A statute declaring that "every 
elective office shall become vacant," on the incumbent's " refusal, 
or neglect, to take his oath of office, or to give, or renew, his 
official bond, or to deposit, or file, such oath, or bond, within the 
time prescribed by law," 9 is not mandatory. The neglect of the 
officer to file such bond, within the prescribed time, is a ground 

1 6 & 7 W. 4, c. 76, s. 51. 6 Code Ga. 1873, p. 32, s. 135. 

2 Regina v. Preece, 1 Dav. & Mer. 156. 7 Id. p. 35, s. 154. 

3 Draper's case, L. & R. 143. 8 Ross«. Williamson, 44 Ga. 501. 

4 Wood's case, C. S. & J. 12. 9 Eev. Stat. Ill, 1874, c. 46, s. 125, 

5 Rex v. Sly the, C. B. & C. 240. 



200 

of forfeiture, but does not, of itself, vacate the office, and a sub- 
sequent approval of a bond filed at a later day is a waiver of the 
right to declare a vacancy in the office. 1 

Under a statute requiring an officer to give bond, " before enter- 
ing upon the duties of his office," 2 a bond given and duly approved, 
before he undertakes the duties of his office, will be sufficient. A 
mere delay, for thirty days after the date of the election, will not 
invalidate the bond. 3 When the law requires an officer to file a 
new bond, within two days after the meeting of the supervisors, 
he has the whole of the two days succeeding the day of meeting 
to execute and present his bond. 4 When a tribunal authorized 
to approve new bonds required, by law, of officers then in office, 
refuses to act, an officer already in office is not compelled to sue 
out a mandamus to enforce such action ; he may set up such 
failure to act, in defence of his right to the office. 5 

§ 234. Where the mayor of a corporation was, by the charter, 
appointed to be elected out of the forty-one common councilmen, 
and every mayor was appointed an alderman, it was held that a 
common councilman, who had once filled the office of mayor, and 
acted as justice for the town, but had since quitted the town, and 
resided at a distance of four miles therefrom, having a bank 
there, and was an acting magistrate for the county, was not en- 
titled to refuse to stand, at a subsequent election of mayor, though 
the performance of the duties of the office would compel him to 
remove his residence to the town, and prevent him from acting as 
magistrate for the county. 6 When the acceptance of an office, by 
the officer elect, within the time prescribed by law, is prevented 
by the usurpation of the office by another person, the failure to 
accept will be excused, and, upon ouster of the usurper, the per- 
son elected will be admitted. 7 A statutory requirement that the 
board of supervisors shall order an election, in case of a for- 
feiture resulting from failure of an officer to qualify, does not 
confer the power of judicially ascertaining the forfeiture and the 
necessity of the new election, and, if it did, the state would not 
be precluded from a quo warranto, on the petition of the proper 

1 Oawley v. People, 95 111. 249 ; State 4 People v. Scannell, 7 Cal. 432. 

v. Ely, 43 Ala. 568; State v. Falconer, 5 Ib. 

44 Ala. 696. fi Rex v. Leyland, 3 M. & S. 184. 

'Purd. Dig. p. 211, s. 10. 7 Regina v. Ooaks, 3 El. & Bl. 249. 

3 Commonwealth v. Read, 2 Ashm. 261. 



201 

officer. 1 Under statutory provisions requiring every public officer 
to take an oath of office, within fifteen days after his election, or 
appointment, and providing that, upon his refusal, or neglect, to 
take the oath within that time, the office shall become vacant, an 
action for salary cannot be maintained, on the ground that the 
plaintiff was ready to perform the duties of the office, without 
proof that the oath was duly taken. 3 

§ 235. As civil officers are appointed for the purpose of exer- 
cising the functions and carrying on the operations of government, 
and maintaining public order, a political organization would seem 
to be imperfect which should allow the depositaries of its power 
to throw off their responsibilities at their own pleasure. This cer- 
tainly was not the doctrine of the common law. In England a 
person, elected to a municipal office, was obliged to accept it and 
perform its duties, and he subjected himself to a penalty by re- 
fusal. An office was regarded as a burden, which the appointee 
w r as bound, in the interest of the community and of good govern- 
ment, to bear. And from this it followed, of course, that, after an 
office was conferred and assumed, it could not be laid down, with- 
out the consent of the appointing power. This was required in 
order that the public interests might suffer no inconvenience, for 
the want of public servants to execute the laws. Acceptance of 
the resignation may be manifested, either by a formal declaration, 
or by the appointment of a successor. 3 When a corporator is duly 

1 Hyde v. State, 52 Miss. 665. office is held at the will of either party. 

2 Halbeck v. Mayor, 10 Abb. Pr. 439. It is held at the will of both. Generally 

3 Edwards r>. United States, 103 U. S. resignations are accepted, and that has 
471 ; 1 Kyd. Corp. c. 3, s. 4 ; Willcock, been so much a matter of course, with 
Corp. pp. 129, 238. 239 ; Grant, Corp. respect to lucrative offices, as to have 
pp. 221, 223, 268 ; 1 Dillon, Mun. Corp. grown into a common notion that to 
s. 163 ; Rex v. Bower, 1 B. & C. 585 ; resign is a matter of right. But it is 
Rex v. Burder, 4 T. R. 778 ; Rex v. Lone, otherwise. The public has a right to 
2 Stra. 920 ; Rex v. Jones, id. 1146 ; the services of all the citizens, and may 
Hoke v. Henderson, 4 Dev. (N. C.) L. 1 ; demand them, in all civil departments, as 
Van Orsdal v. Hazard, 3 Hill (N. Y.) 243 ; well as in the military. Hence there are, 
State v. Ferguson, 31 N. J. L. 107. In in our statute book, several acts to com- 
Hoke v. Henderson, Mr. Chief Justice pel men to serve in offices. Every man 
Ruffin, speaking for the supreme court is obliged, upon a general principle, af- 
of North Carolina, said : "An officer may ter entering upon his office, to discharge 
certainly resign ; but, without accept- the duties of it, while he continues in 
ance, his resignation is nothing, and he office ; and he cannot lay it down, until 
remains in office. It is not true that an the public, or those to whom the author- 



202 

elected mayor lie may be compelled to take the office, either by 
mandamus, or indictment. 1 An officer elect, who is disqualified, 
is not liable to a penalty for refusing the office, under 5 & 6 W. 
4, c. 76, s. 51. 3 

§ 236. It is an ancient and well established principle of the law 
of England that all persons, who are free from disqualification, 
are eligible to the house of commons, even against their expressed 
inclination, and that, after their election, they cannot renounce 
the office, but must serve in the trust conferred upon them, for 
the reason that it is, " a trust, not for their own, but for the public 
benefit." A member, therefore, cannot relinquish, or resign, his 
seat. 3 But, as certain offices under the crown are declared, by 
law, to be incompatible with a seat in the house of commons, and 
members accepting them thereby vacate their seats, this provision 
of law has been used to enable members to evade the parliament- 
ary restriction as to resignation. Certain offices, now merely 
nominal in character, are appropriated by the government for this 
purpose. Whenever a member of the house of commons of what- 
ever party wishes to relinquish his seat, he applies to the proper 
department of government for an appointment to one of these 
offices. The appointment is seldom refused, and when conferred 
vacates his seat in the house. The object of the appointment 
being thus accomplished, the office is immediately resigned. The 
offices usually conferred for this purpose, are those of steward, 

ity is confided, are satisfied that the of- the intention of the judge to apply this 
fice is in a proper state to be left, and remark to the class of officers, who are 
the officer discharged." Similar views elected by the people, and whose ser- 
were expressed by Mr. Justice Gowen, in vices are absolutely necessary to carry 
Van Orsdal v. Hazard. The chief jus- on local government ; or that it was the 
tice of New Jersey, in State v. Ferguson, purpose to brush away, with a breath, 
said: "If he possess this power to re- the doctrine of common law, deeply 
sign, at pleasure, it would seem to fol- rooted in public policy, upon the sub- 
low, as an inevitable consequence, that ject. However true the proposition may 
he cannot be compelled to accept the be, as applied to the facts then before 
office. But the books seem to furnish the circuit court, it is clearly inconsist- 
no warrant for this doctrine. To refuse ent with all the previous decisions, if ex- 
an office, in a public corporation con- tended over the class of officers where 
nected with local jurisdiction, was a responsibility is the subject of consider- 
common law offence, and punishable by ation. 

indictment." Commenting upon the de- a Rex v. Mayor, 4 Doug. 14. 

cision of Mr. Justice McLean, in United 2 Regina v. Richmond, 11 W. R. 65. 

States v. Wright, 1 McLean, 509, he adds, 3 1 Com. J. 724 ; 2 id. 201. 

"It is hardly to be supposed that it was 



203 

or bailiff, of the three Chiltern Hundreds, Stoke, Desborough, and 
Bonenham, or of the manors of East Hendred, Hempholme, or 
Northstead, or escheator of Munster. 1 The acceptance of the 
office of lord justice, in England and in Ireland, in conjunction 
with other offices of the state, does not vacate seats in parliament. 2 
The chancellor of the exchequer has accepted the office of first 
lord of the treasury, without vacating his seat. 3 

§ 237. As a rule members of the parliament of Canada could not 
renounce their election, or resign their seats, of their own mere 
motion. It was a trust, not for themselves, but for the public 
benefit. In a statute, 4 providing for the resignation of members, 
(1) by giving notice, in their places, of their resignation, (2) by 
delivering to the speaker a declaration, in writing, of their inten- 
tion, either during a session, or in the interval between two 
sessions, or by delivering the declaration to any two members, in 
case there was no speaker, and the resignation was made in the 
interval between the two sessions, the words " interval between 
two sessions " were held to mean only an interval between two 
sessions of the same assembly, and not to apply to the interval 
between the last general election and the election of a speaker. 5 

§ 238. In the United States it is generally held that a civil officer 
has the absolute right to resign ; and that his resignation, when 
duly communicated to the proper officer, or body, vacates the 
office, without an acceptance of the resignation. 6 The delivery 
of a resignation of a public civil office, to an officer authorized to 
receive it, but not invested with any discretion to accept, or reject, 
it, vacates the office. 7 Under a statute requiring an officer's resig- 
nation to be sent, in writing, to the governor, the acceptance of 
the resignation, by the governor, is not essential to its validity. 8 
A written resignation, to take effect immediately, when transmitted 
to and received by the officer, or authority, designated by law to 

1 C. S. and J. 29, note; May Pari. Pr. 4 Stat. Can. 32 Vict. c. 4, s. 10. 

658. This would seem to be one of the 5 West Riding case, 31 U. C. Q. B. 

many harmless puerilities of the British 404. 

constitution, and yet it subjects the right 6 Leech v. State, 78 Ind. 570; People 

of resignation, on the part of members v. Porter, 6 Cal. 26 ; United States v. 

of the house of commons, to the will of Wright, 1 McL. 509. 

the executive branch of the government. 7 Gates v. Delaware county, 12 Iowa, 

2 May Pari. Pr. 658 ; 2 Hatsell, 47. 405. 

3 May Pari. Pr. 659. 8 People v. Porter, 6 Cal. 26. 



204 

receive it, cannot be withdrawn. Upon the receipt of the resig- 
nation a vacancy occurs, to be filled by the proper authority. 1 
And when the statute designates the governor, as the officer to 
receive the resignation of a sheriff, but does not empower the 
governor to permit a withdrawal of the resignation, after it is 
received, it cannot be withdrawn, by the sheriff, even with the 
governor's concurrence. 2 An officer elect cannot resign before 
the day arrives on which he is entitled to take possession of the 
office, nor before he qualifies by taking the oath and giving the 
bond required by law and entering upon the discharge of the 
duties of the office. 3 A person not legally elected, although hold- 
ing a seat in the house of representatives of Massachusetts, under 
a certificate of election, has no power to resign his seat. 4 To con- 
stitute a complete and operative resignation, there must be an 
intention to relinquish a portion of the term of the office, accom- 
panied by the act of relinquishment. A resignation, to take effect 
in futuro, is not such a resignation, but is merely a notice of an 
intention to resign, which may be withdrawn, when no new rights 
have intervened. 5 The resignation of a representative in congress 
may be presented to the executive of the state, and an election to fill 
the vacancy held, without previous notice to the house of the resig- 
nation, or vacancy. 6 A county superintendent of schools presented 
to the county court a document in the following form : " The 
undersigned hereby tenders his resignation, as county superintend- 
ent of schools," which was filed by the clerk, in compliance with 
the order of the court. He subsequently filed a paper in which 
he declared that he revoked his resignation. After the second 
paper was filed the county court appointed a superintendent, in 
his place. Upon an information in the nature of a quo warranto, 
on the relation of the new appointee, it was held that the reception 
and filing of the document, by the court, was a virtual acceptance 
of the resignation : and that it was not revocable thereafter. 7 

§ 239. The presiding officer laid before the senate the following 
statement from a senator : " Doubts having arisen whether I have 
still a right to fill my seat in the senate of the United States, with 

1 State v. Hauss, 43 Ind. 105. 5 Bidelle v. Willard, 10 Ind. 62. 

2 lb. 6 Edwards' case, C. & H. 94. 

3 Miller v. Supervisors, 25 Cal. 93. 7 Pace v. People, 50 111. 432. 

4 Marsh's case, C. S. & J. 574. 



205 

a view to have the question settled and a precedent established, 
and to save my own feelings on a point of duty, I beg leave, 
through you, to submit the following case for the decision of that 
honorable boclv. Previous to the 24th December last I forwarded, 
by mail, my resignation to the governor of the state of Kentucky, 
to take place on that day, to be by him communicated to the legis- 
lature of that state, then, and, so far as I am informed, still in 
session. I was, by a letter from the governor of that state, advised 
that he had received my resignation, and would hold it up, in the 
hope of hearing from me, and of a change in my determination, 
on that subject, until about the last of that month, when he would 
communicate it to the legislature. Newspaper information states 
that he did so, and that my successor has been appointed, which 
latter is also stated in a letter to a gentleman of the house of 
representatives, as I have been informed. This is all the infor- 
mation I have received. Whether under these circumstances, I am 
to be considered still a member, it will be for the honorable senate 
to decide. Wishing it to be understood I have no other solicitude, 
as to the result, than to be informed of my duty, which is con- 
cerned in continuing in my place, if I have a right to do so." By 
a vote of twenty-seven to six it was decided that the facts stated 
in the letter vacated the seat. 1 

§ 240. An office may be abandoned by removal from the locality 
to which the officer is restricted by law, by the acceptance of an 
incompatible office, by the loss of a necessary qualification, or by 
incurring a positive disqualification. 2 When an office concerns 
the administration of justice, and the officer ought to act or attend, 
without demand, or request, non-user or non-attendance works a 
forfeiture of the office ; but when the officer is not required to 
exercise the office, except on request, or demand, made, non-user 
is no ground of forfeiture, unless there has been a request and a 
subsequent neglect. 3 The acceptance of an elective office incom- 
patible with an office previously held is an implied resignation of 
such office. When an alderman elected in a city, under a special 
charter, is subsequently chosen alderman, in the same ward, at an 
election held on the assumption of the adoption, by the city, of 
the general law relating to cities, and, after the supreme court has 

Bledsoe's case, C. & H. 869. 3 Earl of Shrewsbury's case, 5 Coke, 

2 Page v. Hardin, 8 B. Mon. 648. 89. 



206 

decided that the general law was not legally adopted, refuses to 
attend the meetings of the council, or to appear on notice to show 
cause why he should not be removed, his second election, and his 
refusal to attend the meetings of the council, may be regarded as 
an abandonment of his office, under the first election, or as an 
implied resignation, and the office may be filled, as in the case of 
a vacancy. 1 The appointment of a deputy, by a county officer, 
in Indiana, and surrender of the office into his charge, while the 
officer held the position of doorkeeper of the house of represent- 
atives of the United States, at Washington, in the District of 
Columbia, in the absence of proof of neglect, was held not to be 
such non-user or mis-user as to forfeit the office. 3 A constitu- 
tional provision that " no person shall hold the office of justice, or 
judge, of any court, longer than until and including the last day 
of December next after he shall be seventy years of age," is not 
applicable to justices of the peace. They are not justices, or 
judges, of any court, within the meaning of such a provision. 3 

§ 241. After the acceptance of an office, refusal to serve, while 
a cause for forfeiture, is not a forfeiture per se. 4 Under a statute 
providing that " the clerks of the superior courts of this state 
shall open their offices every Monday, from nine a. m. to four p. 
m., for the transaction of probate business, and each succeeding 
day, till such matter is disposed of," 5 and that " any clerk of the 
superior court, failing to comply with the last section (unless such 
failure is caused by sickness), shall forfeit his office," 6 a forfeiture, 
incurred by a failure of the clerk to keep open his office, as re- 
quired, can only be enforced by proceedings in the nature of a 
quo warranto. Such forfeiture cannot be enforced by a judgment 
of amotion, as a part of the punishment inflicted on the clerk, 
upon conviction of the misdemeanor of wilfully neglecting to 
discharge the duties of his office, under a statutory provision 
that " if any clerk, or other officer, shall wilfully omit, neglect, or 
refuse, to discharge any of the duties of his office, for default 
whereof it is not elsewhere provided that he shall be indicted, 
the clerk, or other officer, so offending shall be deemed guilty of 
a misdemeanor."' 7 

1 People v. Hanifan, 96 111. 420. 5 Bat. Rev. c. 90, s. 15. 

2 Yonkey v. State, 27 Ind. 236. 6 Id. s. 16. 

3 People v. Mann, 97 N. Y. 530. 7 Bat. Rev. c. 32, s. 107; State®. Nor- 

4 Van Orsdall®. Hazard, 3 Hill, 343. man, 82 N. C. 687. 



CHAPTEE XII. 



ELECTIONS FOR DETERMINATION OF QUESTIONS SUBMITTED 

TO VOTERS. 



Secs. 

1. Delegation of legislative 

power .... 242,243 

2. Submission of questions to pop- 

ular vote . . . 244-246 

3. Authority to be strictly pur- 

sued .... 247-249 

4. Validation of elections pre- 

viously held .... 250 

5. Rescission of vote . . . 251 

6. Effect of vote . . . 252-254 

7. Petition for submission to pop- 

ular vote .... 255 

8. Time of election . . .256 

9. Notice 257 

10. Form of ballot . . .258 

11. Number of votes requisite to 

an affirmative decision . 259-261 



Secs. 

12. Qualifications and disqualifica- 

tions of canvassers . . 262 

13. Declaration of result and rec- 

ord 263 

14. Power of town meeting to vote 

money ..... 264 

15. Military bounty . . 265-267 

16. Location or change of county- 

seat . . . . 268, 269 

17. Railway stock and bonds . 270-275 

18. Schools .... 276,277 

19. Public buildings . . .278 

20. Recitals in bonds . . 279-281 

21. Donations and subscriptions . 282 

22. Loan of credit to individuals 283 



§ 242. While the legislature cannot delegate its power to enact 
laws, it can submit to a vote of the electors the question whether 
a particular statute shall become operative. * A statute uniting 
two municipalities, and providing that the act shall not take full 
effect, unless accepted by the voters of the respective municipali- 
ties, is not unconstitutional as a delegation of legislative power. 2 
A law punishing keepers of gambling-houses, to be in force in 
those towns where it shall be adopted in town meeting, is consti- 
tutional and valid. 3 



1 Clark v. Rogers, 81 Ky. 43. 

2 Stone v. Charlestown, 114 Mass. 214. 
See also Commonwealth v. Quarter Ses- 
sions, 8 Penn. St. 391; Smith v. Mc- 
Carthy, 56 id. 359 ; Bank v. Brown, 
26 N. Y. 467; Clark v. Rochester, 28 
id. 605 ; Patterson v. Society, 4 Zab. 385 ; 
People v. Reynolds, 5 Gilman, 1 ; Peo- 
ple v. Solomon, 51 111. 37 ; St. Louis v. 
Russell, 9 Mo. 503; State v. Scott, 17 
id. 521 ; State v. Elwood, 11 Wis. 17 ; 



Morford v. Unger, 8 Iowa, 82 ; Bull v. 
Read, 13 Gratt. 78 ; Manly v. Raleigh, 4 
Jones Eq. 370. 

But see also Barto v. Himrod, 8 N. Y. 
483; Thorne v. Cramer, 15 Barb. 112; 
Bradley v. Baxter, 15 id. 122 ; John- 
son v. Rich, 9 id. 680 ; Barnes v. Su- 
pervisors, 51 Miss. 305 ; Williams v. Cam- 
mack, 27 id. 221; Alcorn v. Hamer, 38 
id. 652. 

3 State v. Noyes, 30 N. H. 279. 



207 



208 

§ 243. The constitutionality of local option laws cannot be ques- 
tioned on the ground that they involve a delegation of legislative 
powers. 1 It was provided, in a local option law of Maryland, as 
follows : "If it shall be found, by said returns of judges of elec- 
tion and proclamation of the judges of the circuit court, that a 
majority of the votes, in any district of either of said counties, or 
all of them, has been cast against the sale of spirituous, or fer- 
mented, liquors, then it shall not be lawful for any person, or per- 
sons, or body corporate, to sell spirituous, or fermented, liquors, 
in any district of either of said counties, voting by a majority 
against the selling of the same." 2 The supreme court of Mary- 
land held that the act was constitutional and valid, that the pro- 
vision making the prohibition to take effect when a majority of 
the electors had voted for it, did not involve a delegation of legis- 
lative power to the people. 3 Under a subsequent local option 
law, declaring that, "if it shall be found, by said returns of the 
judges of election and proclamation of the clerk of the circuit 
court, for said county, that a majority of the votes, in said county, 
has been cast against the sale of spirituous, or fermented, liquors, 
or alcoholic bitters, then it shall not be lawful for any person, or 
persons, or body corporate, to sell spirituous, or fermented, liquors, 
or alcoholic bitters, in said county, from and after the first day of 
May, 1880, " 4 it was held that the prosecution could lawfully offer 
in evidence the precinct returns, the proclamation of the clerk of 
the circuit court showing that a majority of the votes had been 
cast against such sale, the county papers containing the proclama- 
tion, with the testimony of one of the editors relating to the pub- 
lication thereof ; it was also held that the defendant could not be 
permitted to show that there had been a failure to post the notice 
of election, in one or more of the districts ; that the poll books, 
in one of the districts, were not delivered, at the polls of that dis- 
trict, until one o'clock of the day of the election ; or that voting 
did not commence, in that district, until that hour. 5 Under a 

1 Commonwealth v. Bennett, 108 Mass. 108 Mass. 29 ; State v. Cooke, 24 Minn. 

27 ; Commonwealth v. Dean, 110 id. 247 ; Lock's appeal, 72 Penn. St. 491 ; 

357 ; Commonwealth v. Turner, 1 Cush. Fell v. State, 42 Md. 71. 

493 ; State v. Noyes, 10 Foster, 279 ; Ban- 2 Stat. Md. 1874, c. 453, s. 2. 

croft v. Dumas, 21 Verm. 456 ; Tanner 3 Fell v. State, 42 Md. 71. 

V. Albion, 5 Hill, 121 ; State v. Simonds, 4 Stat. Md. 1880, c. 82, s. 3. 

3 Mo. 414; Commonwealth v. Martin, 5 Crouse v. State, 57 Md. 327. 



209 

statute empowering the inhabitants of any city, or town, to " vote 
that no person shall be allowed to sell, or keep for sale, ale, porter, 
strong beer, lager bier, in which case the sale of such liquors, in 
such city, or town, is prohibited," 1 it is not necessary that the 
vote be taken by ballot ; it may be taken by hand. 3 

§ 244. In the absence of a constitutional prohibition, it is com- 
petent for the legislature to authorize municipalities to aid in the 
construction of railways, without the assent of the qualified voters. 3 
Under statutes authorizing a town to subscribe to the capital stock 
of a railway company, to a limited amount, by a vote of two-thirds 
of the legal voters present, and voting by ballot, at a legal meeting 
called for the purpose, a town may subscribe for stock, within the 
limits fixed, and may become an associate in the formation of the 
corporation. 4 A provision, in a state constitution, declaring that 
" the legislature shall not authorize any county, city, or town, to 
become a stockholder in, or to lend its credit to, any company, 
association, or corporation, unless two-thirds of the qualified voters 
of such county, city, or town, at a special election, or a regular 
election, to be held therein, shall assent thereto," 5 is wholly pro- 
spective, in its operation, and does not abrogate previous acts of 
the legislature, conferring authority to subscribe for stock. 6 A 
provision, in the constitution of a state, that " the general assembly 
shall not authorize any county, city, or town, to become a stock- 
holder in, or loan its credit to, any company, association, or 
corporation, unless two-thirds of the qualified voters of such 
county, city, or town, at a regular, or special, election, to be held 
therein, shall assent thereto," 7 does not withdraw, or curtail any 
authority, which a municipal corporation possessed, at the time of 
the adoption of the constitution, to subscribe for stock in, or loan 
its credit to, a railway company. 8 

§ 245. A state constitution contained the following section : 
"No county, city, town, township, or other municipality, shall 
ever become a subscriber to the capital stock of any railroad, or 
private corporation, or make donation to, or loan its credit in aid 

1 Stat. Mass. 1870, c. 389, s. 3. 5 Const. Miss. 1869, s. 14. 

2 Commonwealth v. Doe, 108 Mass. 418. 6 Supervisors v. Galbraith, 99 U. S. 214. 

3 Railroad Co. v. McDonald, 53 Miss. 7 Const. Mo. 1865, art. 11, s. 14. 
240. 8 Louisiana v. Taylor, 105 U. S. 454. 

4 Kittredge v. North Brookfield, 138 
Mass. 286. 
14 



210 

of. any such corporation : Provided, however, That the adoption 
of this article shall not be construed as affecting the right of any 
such municipality to make such subscriptions, where the same 
have been authorized, under existing laws, by a vote of the people 
of such municipalities, prior to such adoption." 1 It was held that 
this prohibition did not invalidate township bonds, which, pur- 
suant to a vote cast, at an election lawfully held, on the day on 
which the constitution was adopted, before closing the polls of the 
general election, were issued to pay a previously voted donation, 
which was to be provided by special tax. 2 A statutory provision 
that " no county court of any county, city council of any city, nor 
any board of trustees of any incorporated town, shall hereafter 
have the right to donate, take, or subscribe, stock for such county, 
city, or incorporated town, in, or loan the credit thereof to, any 
railroad company, or other company, corporation, or association, 
unless authorized to do so by a vote of two-thirds of the qualified 
voters of such county, city, or incorporated town," 8 is merely pro- 
hibitory in its effect. It does not, of itself, authorize the officers 
designated to exercise the power, even with the assent of two- 
thirds of the voters. 4 A statutory provision "that an election 
shall be held in the county, for and on account of which stock is 
proposed to be subscribed, by the qualified electors thereof," does 
not exclude a second election, in case the proposition is rejected 
by the voters, at the first election. 5 

§ 246. The statute authorized the county judge to " submit to 
the people of his county, at any regular election, or at a special 
one called for that purpose, the question whether money may be 
borrowed to aid in the erection of other public buildings ; whether 
the county will construct, or aid to construct, any road or bridge, 
which may call for an extraordinary expenditure, and the 

question of any other local, or police, regulation, not inconsistent 
with the laws of the state." The statute also authorized the elect- 
ors, at a general or special election, to ratify a contract, between 
the county and a railway company, for the sale of the swamp lands 
of the county to the company, in aid of the construction of its 
road. And a subsequent statute transferred the powers of the 

1 Const. 111. July 2, 1870. 3 Stat. Mo. Feb. 16, 1872. 

2 Louisville v. Savings Bank, 104 U. S. 4 Jarrolt v. Moberly, 103 U. S. 580. 

469. 5 Supervisors v. Galbraith, 99 id. 214. 



211 

county judge to the county supervisors. It was held to have been 
competent for the supervisors to call a special election, for the 
purpose of submitting, to the voters of the county, the question 
of the ratification of such a contract ; and that it was not a valid 
objection to the contract that its ratification was not submitted to 
all the voters for the reason that some of them were, at the time, 
absent from the county, engaged in the military service of the 
United States. A Under a constitutional provision that " the general 
assembly shall never authorize any county, city, town, or town- 
ship, by vote of its citizens, or otherwise, to become a stockholder 
in any joint stock company, corporation, or association, whatever, 
or to raise money for, or loan its credit to, or in aid of, any such 
company, corporation, and association," 2 an act authorizing cer- 
tain municipalities to build railroads, and to borrow money, for 
that purpose, which provides for raising money, by taxation, to 
be applied to such unlawful purposes, as well as to other purposes 
not unlawful, but gives the officers entrusted with the control and 
application of the money so raised no means, or power, of dis- 
crimination, as to the lawfulness, or unlawfulness, of the work, or 
purposes, to which it is to be applied, is void. 3 

§ 247. When authority is conferred by statute upon certain 
designated officers, in their discretion, to submit, to a vote of the 
qualified electors of the municipality, a specific question, at the 
request of a specified number, or proportion, of the electors, or 
inhabitants, and upon a notification to the electors, given in the 
mode, and for the period of time, prescribed, the statutory require- 
ments are mainly mandatory. The election will be void if the 
question shall not be submitted to the electors by the designated 
officers. It will be void if the question shall be submitted to the 
electors by the designated officers, without a request from the pre- 
scribed number or portion, of the electors, or inhabitants. It will 
be void if the notification shall not set forth the question author- 
ized by statute to be submitted, or if the notice shall not be given 
for the time and in the manner specified. When the duty, so im- 
posed upon the designated officers, is not discretionary, but com- 
pulsory, the same rules are applicable ; but if, upon request of 
the specified number, or proportion, of the electors, or inhabitants 

1 E.R. Co. v. County, 34 Iowa, 45. 3 Taylor v. Boss County, 23 Ohio St, 22, 

2 Const. Ohio, 1851, art. 8, s. 6. 



212 

of the municipality duly made, the officers designated to submit 
the question to the electors refuse, or neglect, to perform the duty, 
its performance may be enforced, in proper cases, by mandamus. 
If the statute authorize the submission, not of a specific question, 
but of such questions as a specified number, or proportion, of the 
electors, or inhabitants, shall duly request the designated officers 
to submit, on specified subjects, the same rules will also be applica- 
ble. It will be essential to the validity of the election that the 
request of the electors, or inhabitants, be made in terms suffi- 
ciently clear and accurate to enable the officers to understand the 
precise question to be submitted. It will also be essential to the 
validity of the election that the question, which the officers shall 
be requested to submit, and the question which they shall in fact 
submit, to the electors, shall be substantially the same question, 
and that it be set forth, in the notice of the election, in terms 
clear enough to enable the electors to understand the precise prop- 
osition on which they are to vote. The election will also be void 
if the question submitted be not within the scope of the statute. 
§ 248. The constitution of Georgia declares that " laws of a 
general nature shall have uniform operation throughout the state, 
and no special law shall be enacted, in any case for which provi- 
sion has been made by an existing general law." 1 A local statute, 
regulating an election, in a certain county, on the question of 
issuing county bonds, was enacted, after the adoption of the con- 
stitution and before the enactment of a general law relating to 
such elections generally. The election held under the local statute 
having failed to accomplish the desired result, an act was passed, 
after the enactment of the general law, to continue in force the 
local act. 2 It was held, by the supreme court of Georgia, that the 
latter act was unconstitutional. 3 When a bridge over a river, which 
constitutes the boundary of two adjacent states, is built by private 
subscription, and subsequently a town, in which a part of it lies, 
votes to accept that part, as a public bridge, and to pay a specified 
amount towards the expenses incurred in building it, such vote is 
beyond the power of the town, and is without consideration. 4 A 
popular vote in favor of a municipal subscription to the capital 

1 Const. Ga. 1877, art. 1, s. 4, par. 1. 4 Abendroth v. Greenwich, 29 Conn. 

2 Stat. Ga. 1880-1, p. 532. • 356. 
8 County v. Boyt, 71 Ga. 484. 



213 

stock of a railway company, cast at an election held without 
authority of law, does not bind the municipality, nor confer any 
power to make the .subscription. 1 Where the legislature author- 
izes a township, as a corporate body, to hold an election to deter- 
mine the question of giving aid in the construction of a railway, 
and prescribes no mode of holding it, the election is to be held 
in the mode prescribed for the choice of township officers, and 
not under the general election laws. 2 

§ 249. Where the vote of a town meeting, on the question of a 
guaranty of railway bonds, was taken viva voce, and not by ballot, 
as the law required, but no notice thereof was given, on behalf of 
the town, to the railway company, until more than three years 
had elapsed, and the guarantied bonds had been transferred to 
holders without notice, the town was held to be liable on the bonds, 
notwithstanding the presence of agents of the railway company at 
the town meeting, and notwithstanding the town record, amended 
by order of the court, showed that the vote was taken viva voce. 8 
When the vote of a town is cast in favor of raising money, for 
purposes not authorized by law, and also for purposes authorized 
by law, the result is void in part, but that part of the result which 
is valid, if separable from that which is void, will be sustained. 4 
An act providing for an election to be held, on the question of the 
removal of the county seat to the town of Bowling Green, is not 
rendered invalid, or inoperative, by the fact that Bowling Green 
is, under the statute, an incorporated village ; the word town is to 
be understood in its popular sense. 5 When the selectmen are 
authorized to " establish and maintain such public drinking troughs, 
wells, and fountains, within the public highways, squares, and 
commons of their respective towns, as, in their judgment, the pub- 
lic necessity and convenience may require," 6 and the towns are 
authorized to receive and appropriate the money to pay the ex- 
pense thereof, but are not authorized, in their corporate capacity, 
to construct " drinking troughs," a vote of a town " that the 
selectmen be instructed to establish a public watering trough," in 
a certain locality, is illegal, and the town is not liable for injuries 
resulting from its erection and maintenance.' 7 

1 Allen v. Louisiana, 103 U. S. 80. 4 Barbour v. Camden, 51 Me. 608. 

2 People v. Dutcher, 56 111. 144. 5 Peck v. Weddell, 17 Ohio St. 271. 

3 Railway Co. v. Chatham, 42 Conn. 6 Stat. Mass. 1872, c. 84. 

465. 7 Cushing v. Bedford, 125 Mass. 526. 



214 

§ 250. A vote, taken at a municipal election, without authority 
of law, in favor of a subscription, by the municipality, to the capi- 
tal stock of a railroad company, may be validated by a subsequent 
act of the legislature. Such an act is not in conflict with a con- 
stitutional provision that "the property of no person shall be 
taken, for public use, without just compensation therefor," nor is 
it retroactive or unjust. 1 In the absence of constitutional or legis- 
lative authority, a town meeting has no power to vote money for 
gratuities to men drafted for the military service of the United 
States ; but the legislature has power to authorize a town to con- 
firm such action, by another vote on the subject, and such con- 
firmatory action of the town will be valid. 2 An act legalizing a 
special election held in a single city, and authorizing such city to 
issue bonds to aid a specified manufacturing enterprise, is a special 
act conferring corporate powers, within the meaning and in viola- 
tion of the provisions of a section of the constitution declaring 
that "the legislature shall pass no special act conferring corpo- 
rate powers." 3 

§ 251. A vote, given at a town meeting, to aid in the construc- 
tion of a railway, by a subscription to its capital stock, may be 
rescinded, at a subsequent town meeting, when no rights of third 
parties have vested, and nothing has been done under the vote. 4 
A vote to pay a bounty to a soldier already in the service is based 
upon a sufficient consideration, and cannot be rescinded by the 
town, without the consent of the soldier. A demand, before suit 
brought, is not necessary, in such case, to entitle the soldier to 
recover. 5 

§ 252. The statute of Illinois known as the stock law expressly 
provided for two kinds of elections, one to be held by counties, as 
such, and the other by certain legal subdivisions of the counties, 
as precincts, townships, incorporated cities, villages, and towns. 
It contained a general prohibition against the running at large of 
domestic animals, but provided for submitting the question whether 
such animals should be permitted to run at large to a vote of the 
people of the county, and declared that, although the majority of 
the votes cast in the county should be in favor of permitting 

1 Bridgeport v. R R. Co. 15 Conn. 475. 4 Esley v. Starr, 56 id. 690. 

2 Booth v. Woodbury, 32 id. 118. 5 Josselyn v. Ludlow, 44 id. 534. 

3 Const. Kan. 1859, art. 12, s. 1 ; Bank 
v. Iola, 2 Dill. 353. 



215 

domestic animals to run at large, if the majority, in any city, village, 
or town, of the county, should be adverse, it should not be lawful 
for them to run at large, in such city, village, or, town ; that 
whenever the law in force should permit cattle to run at large, it 
should be lawful, at any election of the kind designated, to vote 
again, on the question, but when the running at large of domestic 
animals should be prohibited, by a vote of the electors, another 
vote should not be taken, on the question, until after the expiration 
of five years ; and a vote to permit them to run at large should 
not become operative, before the expiration of one year, after the 
day of the election. It was held, by the supreme court of the state, 
that a county vote, restraining domestic animals, was binding on 
all the townships and other subdivisions of the county, for a period 
of five years, however the latter might have voted ; that a county 
vote, in favor of permitting domestic animals to run at large, was 
only binding on such townships as so voted ; and that, after such 
a vote, the question could be re-submitted, from year to year, until 
a majority should vote in favor of restraining them. 1 

§ 253. Under a statute providing that if, at an election held, as 
therein prescribed, " a majority of the taxable inhabitants shall 
determine in favor of the tax, it shall be the duty of said court to 
levy and collect from them a special tax, which shall be kept 
separate from all other funds, and appropriated to no other pur- 
poses, and, as fast as collected, shall cause the same to be paid 
to the treasurer of said company," 2 it was held, by the supreme 
court of the United States, that the affirmative vote of the inhab- 
itants authorized the county court to levy, collect, and pay over 
to the treasury of the company, such special tax, but did not 
create a debt of the county, for which bonds might be issued. 3 
The vote of a town meeting to build a bridge, and to authorize the 
selectmen, as agents of the town, " to raise such sums of money, 
by loan, as is necessary, in their judgment, to meet the expenses 
of building a good, substantial bridge," does not, of itself, subject 
the town to any liability, but only makes it possible for the select- 
men to create such liability, and if, before such liability is created, 
by the selectmen, a new town is erected, within the boundaries of 
the old, it cannot be subjected to such liability by the selectmen 

'Bach v. Ammons, 106 111. 406. a Ogden]fl. County of Daviess, 102 

2 Stat.. Mo. Jan. 4, 1840. U. S. 634. * 



216 

of the old town. 1 Under a constitution authorizing the submission 
of proposed amendments thereof to a vote of the electors, and 
declaring that, " if a majority of the electors, voting at said elec- 
tion, shall vote for the proposed amendments, they shall become a 
part of this constitution," 2 an amendment, providing that "in 
each county there shall be elected the following county officers, 
at the general election to be held on the Tuesday after the first 
Monday in November, A. D. 1882," and that the terms of the 
officers shall be four years, was held to become operative, as a 
part of the constitution, as soon as adopted, so as to supersede 
prior constitutional, or statutory, provisions for elections in 1881. 3 

§ 254. Under a statute providing that, " if the proprietors of 
any railroad shall not, upon request, establish proper stopping 
places and depots, for the public accommodation, they may, upon 
such proceedings as are before prescribed in the case of passes 
and bridges, be required to establish such depots," 4 a notification 
that it had been '■' voted that the town of Derry required the 
Nashua and Rochester Railroad to locate a stopping place and 
depot, in the town of Derry, on the line of said railroad, west of 
the Black Meadows so-called, the said railroad not having estab- 
lished any proper stopping places for the public accommodation 
of said town," is a sufficient notification, and the vote is suffi- 
ciently definite, and constitutes a legal request. 5 When municipal 
authorities are empowered, by an act of the legislature, to purchase 
and donate to a railroad company the right of way, together with 
grounds for depots, engine-houses, machine-shop, and yard-room, 
and to issue bonds, of an amount specified to pay for the same, 
on condition that the result of a popular election shall be in favor 
of such purchase, donation, and issue of bonds, it is competent 
for such municipal authorities to deliver the bonds, as a donation 
to the railroad company, in lieu of the grounds and right of way. 6 

§ 255. It was provided by statute as follows : " Whenever the 
inhabitants of any county are desirous of changing their county 
seat, and upon petitions therefor being presented to the county 
commissioners, signed by resident electors of said county equal, 
in number, to three-fifths of all the votes cast in said county at 

1 Westbrook v. Deering, 63 Me. 231. 4 Gen. Stat. N. H. 1867, c. 147, s. 14. 

2 Const. 111. art. 14, s. 2. 5 Kailroad V. Derry, 58 N. Y. 65. 

3 People v. Supervisors, 100 111. 495. 6 Converse v. Fort Scott, 92 ¥. S. 503. 



217 

the last general election held therein, said petition shall contain, 
in addition to the names of the petitioners, the section, township, 
and range, on which, or town, or city, in which, the petitioners 
reside, their ages and time of residence in the county, it shall be 
the duty of said board of commissioners to forthwith call a special 
election, in said county, for the purpose of submitting to the 
qualified electors thereof the question of the relocation of the 
county seat." 1 The supreme court of Nebraska held that this 
act conferred upon the county commissioners exclusive authority 
to receive petitions for the relocation of county seats, and also, 
incidentally, to determine whether the signatures of such petitions 
were the genuine signatures of persons authorized to sign them ;. 
and that, when in the exercise of this jurisdiction the commis- 
sioners received a petition for the relocation of a county seat, 
judged it to be sufficient, and called an election accordingly, no 
objection being made either to the petition, or to the action of 
the commissioners, until after the election had been held, and the 
result declared, it was too late to question the sufficiency of the 
petition ; and that an injunction, to restrain the removal of the 
county offices to the new county seat, on the ground that such 
petition did not conform to the requirements of the law, would 
not be granted. 2 The local option law of the state of Alabama 
empowered the probate judge to order a local election, upon the 
presentation of a petition by a freeholder of the locality, setting 
forth, inter alia, " that, in the opinion of the petitioner, the public 
good will be promoted by a prohibition of the sale, or giving away, 
of vinous, or spirituous liquors, within such limits." 3 It was held 
that, in order to give the judge jurisdiction to order the election, 
it was necessary that the petition should contain all the averments 
specified in the statute, and that the omission of the clause cited 
above was a , fatal defect, which rendered the entire proceeding 
void. 4 

§ 256. Under an act authorizing municipal corporations to 
build railroads, in pursuance of the determination of the qualified 
electors, and containing a proviso " that no county under the pro- 
visions of this act shall hold more than one special election, in 
one year," 5 at least twelve months must intervene, between special 

'Stat. Neb. Feb. 24, 1875, s. 1. 4 Tally v. Grider, 66 Ala. 119. 

2 Ellis v. Karl, 7 Neb. 381. 5 Stat. Ohio, 1872, 84, 2. 

3 Stat. Ala. March 19, 1875. 



218 

elections held by the same municipal authority, whether the elec- 
tions relate to the same proposed road, or to other and different 
roads. x Where domestic animals are prohibited by law from run- 
ning at large, but it is provided that " in any year " an election 
may be held to determine whether such animals shall be permit- 
ted to run at large, and also that " where, in any county, town, 
precinct, village, or city, domestic animals shall have been 
restrained from running at large, and such county, town, precinct, 
village, or city, shall vote to permit such animals to again run at 
large therein, such vote shall not take effect, so as to permit such 
animals to run at large within one year after the election : Pro- 
vided, That no vote to permit such animals to again run at large, 
in any county, town, or precinct, where the same shall have been 
restrained by any election after the adoption of this act, shall be 
taken within five years after such restraining," 2 a vote may be 
taken at a general election until the result shall be to prevent 
cattle from running at large, notwithstanding a previous vote 
allowing them so to run at large. But after a vote requiring 
domestic animals to be restrained by their owners, no other vote, 
upon that subject, is allowed, until after the expiration of five 
years. 3 

§ 257. Under a statute requiring ten days' notice of an election 
to be held, to determine the question of borrowing money to erect 
a school house, and declaring that the notice " shall specify the 
place, where such election is to be held, the time of opening and 
closing the polls, and the question or questions to be voted on," 4 
it was held that a levy of taxes, for the payment of money, bor- 
rowed upon the authority of an election held without notice that 
such queston was to be voted on, was void, and that a judgment 
against land for the non-payment of taxes so levied was void. 5 But 
it has been held that statutory provisions, prescribing the time and 
manner of giving notice of the presentation of a petition, for the 
holding of an election, on the question of the removal of a county 
seat, are directory merely, and that the absence of such notice 
will not invalidate an election, of which the people are in fact duly 
notified. 6 

Stewart v. Norwalk, 22 Ohio St. 323. 4 Eev. Stat. 111. 1874, c. 122, s. 49. 

2 Rev. Stat. 111. 1874, c. 8, ss. 2, 7. 6 Thatcher v. People, 93 111. 240. 

3 Vogt v. Dunley, 97 111. 424. 6 Dishon *>. Smith, 10 Iowa, 212. 



219 

§ 258. Under a statute authorizing the voters " to determine as 
to raising a tax, or making a loan, for the purpose "* of repairing 
bridges, a ballot for both a tax and a loan is illegal. 2 Under a 
statute authorizing the voters of the county to determine the loca- 
tion, or relocation, of the county seat, ballots entitled " Fairfield 
ticket," accurately describing a subdivision of land within the 
limits of the town of Fairfield, are to be counted for Fairfield. 3 
Under a statute authorizing each voter to " deposit a ticket, or 
ballot," for or against certain amendments of the constitution, the 
question arose, in the forty-fourth congress, whether a vote for or 
against the amendments could be legally given, on the same ballot 
with a vote for officers, or on a separate paper folded within such 
ballot. Six members of the committee of election concluded that 
the statute permitted these modes of voting ; five members of the 
committee were of the opposite opinion. The case presented 
other questions. The house sustained the minority. 4 Under a 
statute authorizing the electors of townships, incorporated towns, 
and cities, to determine whether those municipalities shall aid in 
the construction of proposed railways, at special elections, at which 
" the question of ' taxation,' or ' no taxation,' shall be submitted," 
ballots, bearing the words " against taxation, for the benefit of 
railroad companies, or any other monopolies, to the indebtedness 
of the poor man," are to be canvassed against the proposed sub- 
sidy. 5 The board of county supervisors submitted to the electors 
the following question : " Shall the swamp land fund of Guthrie 
county, Iowa, be devoted, by the board of supervisors of said 
county, to the erection of a court house, at Guthrie Centre, in said 
county, and a county high school in the town of Panora, in said 
county, in the proportion of two-thirds thereof to the erection of 
said court house, and one-third to the erection of said county high 
school building ? " It was held, by the supreme court of Iowa, 
that the joinder of two objects, and of two separate appropria- 
tions for distinct objects, in one proposition, so that the elector 
could not vote for one and against the other, was a fatal objection 
to the legality of the proceedings. 6 

1 Stat. Mich. 1867, c. 98. - 5 Cattell v. Lowry, 45 Iowa, 478. 

2 Loomis v. Township, 53 Mich. 135. 6 Gray v. Mount, 45 id. 591 ; McMil- 

3 State v. Dinsmore, 5 Neb. 145. Ian v. Boyle, 3 id. 311. 

4 Piatt v. Goode, Smith, 650. 



220 

§ 259. Under a constitutional provision that incorporated towns, 
or cities, may contribute to works of public improvement, "after 
a majority of the qualified voters of such town, or city, voting at 
an election held for the purpose, shall have voted in favor of the 
same; but not otherwise," 1 it is sufficient if a majority of the 
votes cast on the particular question are in favor of such contri- 
bution. 2 Under a state constitution authorizing the legislature to 
submit proposed constitutional amendments to the people, for 
their approval or disapproval, and providing that, "if a majority 
of the electors, voting on said amendments at said election, shall 
adopt the amendments, the same shall become a part of the con- 
stitution," it was held that when two, or more, propositions for 
constitutional amendments were submitted at the same election, 
either one could be adopted, if a majority of the electors voting 
upon it voted in favor of its adoption, without reference to the 
number of votes cast on other propositions, or for any candidates. 3 
Under a constitution declaring that amendments to a city charter 
shall not take effect, until submitted to the qualified voters, at a 
general, or special, election, " and accepted by at least three-fifths 
of the qualified voters voting thereat," 4 amendments submitted at 
a general election, and receiving more than three -fifths of all the 
votes cast on the question of their adoption, but less than three- 
fifths of all the votes cast, on the same day, for city officers, are 
not adopted. 5 Under a statute authorizing "a majority of the 
legal voters" 6 assembled, at any annual town meeting, to deter- 
mine whether, at subsequent elections, the viva voce vote shall be 
substituted for the vote by ballot, a majority of all the votes cast 
is necessary to a change. A majority of those voting on the ques- 
tion will not suffice.' 7 The constitution of Minnesota contained 
the following provision: "All laws changing county lines, in 
counties already organized, or for removing county seats, shall, 
before taking effect, be submitted to the electors of the county, or 
counties, to be affected thereby, at the next general election after 
the passage thereof, and be adopted by a majority of such elec- 
tors." 8 It was held, by the supreme court, that the spirit of this 

1 Const. Ga. 1868, art. 3, s. 6. 5 State v. Mayor, 73 Mo. 435. 

2 Black v. Cohen, 52 Ga. 621. 6 Stat. N. J. Men. 22, 1860. 

3 Prohibitory Amendment cases, 24 7 State v. Labaw, 3 Vroom. 269. 
Kan. 700. 8 Const. Minn. art. 11, s. 1. 

4 Const. Mo. 1875, art. 9, s. 22. 



221 

provision did not require an absolute majority of the votes of the 
qualified electors of the county, but only a majority of those 
present and voting. 1 

§ 260. A constitutional provision that " the legislature shall not 
authorize any county, city, or town, to become a stockholder in, or 
lend its credit to, any company, association, or corporation, unless 
two- thirds of the qualified voters of such county, city, or town, at 
a special election, or regular election, shall assent thereto," 2 re- 
quires the affirmative vote, not merely of two-thirds of those who 
actually vote at the election, but of two-thirds of all the qualified 
electors of the municipality. The registration is competent evi- 
dence to show the number of the qualified voters, subject to 
correction, in cases of deaths, removals, or disqualifications sub- 
sequently incurred. 3 A constitutional requirement that " no part 
of the county shall be taken off, without the consent of two-thirds 
of the qualified voters in such part," 4 is not satisfied by the pas- 
sive acquiescence of two-thirds of the qualified voters, but only by 
their affirmative consent, which may be expressed in an election, 
or otherwise. The consent of two-thirds of the electors voting, 
at an election, in favor of the change, is not sufficient unless they 
constitute two-thirds of the qualified voters. 5 Under a constitu- 
tion requiring the consent of " two-thirds of the qualified voters " 
of the county to the removal of the county seat, a statute author- 
izing a removal, upon the consent of voters equal, in number, to 
two-thirds of those who voted at the next preceding election for 
governor, is void. 6 The provisions of article 11, section 14, of 
the constitution of Missouri, adopted in 1865, which require the 
assent of two-thirds of the qualified voters of a county to a sub- 
scription, on its behalf, for stock in a corporation, do not apply 
to cases where such subscription is made for stock in a railway 
company, pursuant to the power conferred by its charter granted 
prior to the adoption of that constitution, notwithstanding the 
contemplated road is a branch road, the construction of which, 
although authorized by such charter, is, in fact, undertaken as an 
independent enterprise, under the act of March 21, 1868. 1 Under 

1 Taylor v. Taylor, 10 Minn. 107. 4 Const. Tenn. 1870, art. 10, s. 4. 

2 Const. Miss. 1868, art. 12, s. 14. 5 Cocke v. Gooch, 5 Heisk. 294. 

3 Hawkins v. Carroll County, 50 Miss. 6 Bouldin v. Lockhard, 3 J. Baxt. 262. 
735. 7 t County v. Gillett, 100 U. S. 585. 



222 

a constitution giving authority to levy a tax, if " two -thirds of the 
tax-payers of such city, or town, shall vote for such tax," 1 an assent 
to the tax cannot be implied by a failure to vote at the election 
held to determine upon such tax. 2 

§ 261. The mayor and aldermen of the town were, by statute, 
empowered as follows : "to issue the bonds of the corporation, 
bearing interest not to exceed six per cent, per annum, and having 
not more than twenty years to run ; but this authority shall not 
be exercised, unless the ordinance authorizing the same shall first 
be submitted to the vote of the qualified voters of the corporation, 
at an election to be held under the direction of said board, for 
that purpose, and after giving ten days' notice of the time and 
place of election, by written notices, posted at four public places 
within the corporation, and if a majority of those voting decide 
against the proposition, the bonds shall not be issued." 3 The 
following resolutions were adopted : " Resolved, By the mayor and 
aldermen of said corporation, that the mayor be and is hereby 
fully authorized to employ an agent, for said corporation, to have 
two hundred bonds of said corporation struck off, in good style, 
in New York, of the denomination of one hundred dollars each, 
bearing six per cent, interest, and running ten years, the interest 
to be paid semi-annually, at some designated bank in New York 
city ; and that he be further authorized to procure a seal for the 
use of the corporation. Resolved furthermore, That notice be given 
to the qualified voters of the corporation, as required by the act 
of the legislature passed March 14, 1868." A majority of the 
electors who voted having decided in favor of the resolutions, it 
was held that the bonds issued in accordance therewith were 
valid. 4 A statute authorized the mayor and city council to sub- 
scribe for the stock of a railroad company, " on the recommen- 
dation of a majorit}^ of citizens, either in public meeting or by 
public election." 5 The state constitution, subsequently adopted, 
contained the following provision : " No law shall be passed by 
which a citizen shall be compelled, against his consent, directly, 
or indirectly, to become a stockholder in, or contribute to, any 
railroad, * except in the case of the inhabitants of a corporate 

1 Const. Tex. 1876, art. 11, s. 10. 4 Carriger v. Mayor, 1 B. J. Lea, 243. 

2 Fort Worth v. Davis, 57 Tex. 225. 5 Stat. Ga. Dec. 13, 1859, s. 13. 

3 Stat. Tenn. 1868, c. 102, s. 1. 



223 

town, or city. In such cases the general assembly may permit 
the corporate authorities to take such stock, or make such contri- 
bution, * after a majority of the qualified voters of such town, or 
city, voting at an election held for the purpose, shall have voted 
in favor of the same, but not otherwise." 1 It was held, by the 
supreme court of Georgia, that, after the adoption of this consti- 
tutional provision, the recommendation of a majority of citizens 
could only be given at a public election, at which all the qualified 
electors of the city, or town, had an opportunity to vote, and that 
the votes of a majority of those who took part in the election 
were sufficient to warrant the proposed subscription, even though 
a majority of the whole number of qualified electors did not 
vote. 2 

§ 262. It was provided, by law, as follows : " The presiding 
judge of the county court, the clerk thereof, and the sheriff, or 
other officer, acting for him, at an election, shall constitute a board 
for examining the poll books of each county, and giving certifi- 
cates of election. Any two of them may constitute a board ; but, 
if either is a candidate, he shall have no voice in the decision of 
his own case. If, from any cause, two of the before named per- 
sons cannot, in whole, or in part, act in comparing the polls, their 
places shall be supplied by the two justices of the peace who may 
reside nearest to the court house." 3 It was held by the supreme 
court of Kentucky, that when only one of these officers was dis- 
qualified, at a regular election, at which a vote was taken on the 
question whether spirituous liquors should be sold within the cor- 
porate limits of the town, he could nevertheless act as canvasser, 
except in the decision of his own case, but where two were dis- 
qualified both were wholly excluded from the canvass, and their 
places were taken, for all purposes, by the justices of the peace. 4 

§ 263. Upon an application for an injunction, to restrain the 
collection of a tax for the construction of a fence, it was held that 
the action of the commissioners, in ascertaining and declaring 
that, at an election properly held, a majority of the voters favored 
the provisions of the act, was conclusive, and gave effect to the 
enactment, which could not be defeated by mere irregularities in 

1 Const. Ga. 1868. 4 Commonwealth v. Hoke, 14 Bush 

2 Mayor v. Inman, 57 Ga. 370. (Ky.), 668. 
3 1 Stanton, Rev. Stat. Ky. 436. 



224 



the construction of the fence. 1 If a legal election be held in favor 
of the issue of municipal bonds, the failure to make a record of 
the election will not affect the power to issue them. 3 

§ 264. If the vote of the town meeting indicate, in general terms, 
the object for which money is raised, and that purpose come within 
the scope of the powers of the town, it will be sufficient. 3 A town 
may lawfully vote to repay money which has been wrongfully paid 
into its treasury by a town agent, to whom it was given by the 
owner on a condition, and such vote is not revocable by a subse- 
quent vote. 4 A town cannot legally vote to raise, by taxation, or 
pay from its treasury money for expenses incurred in opposing, 
before the legislature, the annexation of the whole, or a part, of 
its territory to another municipality. 5 Under a statute providing 
that towns " may, at legal meetings, grant and vote such sums as 
they judge necessary for the following purposes : for the support 
of town schools ; for the relief, support, maintenance, and employ- 
ment of the poor ; for laying out, discontinuing, making, altering, 
and repairing highways and townways, and for labor and materials 
to be used thereon ; for procuring the writing and publishing of 
their town histories ; for burial grounds ; for encouraging the des- 
truction of noxious animals ; for all other necessary charges aris- 
ing therein" it was held that towns had authority to raise money 
whenever it was required to enable them to execute the powers, or 
to perform the duties, conferred and imposed upon them. 6 

§ 265. A. statute providing that " hereafter the several towns are 
authorized to raise money, for the purpose of rendering relief and 
assistance to the needy and destitute families, or dependents, of 
those who -have been, or may be hereafter, mustered into the navy, 
or army, of the United States, from this state, to an amount not 
exceeding four dollars, per week, to the family of any one per- 



1 Simpson v. Commissioners, 84 N. C. 



158. 



Wileyw. Board of Education, 11 Minn. 



268. 

3 Blodgettfl. Holbrook, 39 Verm. 336. 

4 Hall v. Holden, 116 Mass. 172. 

5 Coolidge v. Brookline, 114 Mass. 592. 
See also Minot v. West Boxbury, 112 
id. 1 ; Attorney-General v. Norwich, 
16 Sim. 225 ; Attorney-General v. Guard- 
ians, 17 id. 6 ; Great Western Railway c. 27, s. 10. 



v. Bushout, 5 De G. & Sm. 290; Simp- 
son v. Denison, 10 Hare, 51. 

6 Dunn». Framingham, 132 Mass. 436. 
The word " therein," seems to have been 
applied to the town. In the next revi- 
sion of the statutes the words " in such 
town " were substituted for the word 
"therein," the concluding clause being 
"for all other necessary charges arising 
in said town." Pub. Stat. Mass. 1882, 



225 

son," 1 confers upon towns no power to vote, or expend money, by 
way of bounty, to soldiers enlisted, or drafted, into the service of 
the United States. 2 Under a statute providing that the authorities 
of any city, or town, that may make appropriations for bounties 
to soldiers, be empowered to levy a tax, for a sum sufficient to 
cover the appropriation, towns are not authorized to vote money 
for the indemnification of individuals who have contributed to the 
payment of bounties to volunteers. 3 A vote of a town meeting, 
to pay " the veteran soldiers " a bounty, applies only to veterans 
whose service stands to the credit of the town. 4 A vote "to pay 
each volunteer * $300 when mustered in " under a warning 
" to see what course the town will take to fill the quota under the 
last two calls," is limited to the quotas under the two calls then 
incumbent on the town to fill. 5 In Vermont a statute authorizing 
towns to vote money to be paid to drafted men is open to no valid 
constitutional objection. 6 

§ 266. A town,' having, without authority, voted money to such 
of its citizens as should be drafted into the military service of the 
United States, was enjoined against action under such vote. Sub- 
sequently the town ratified the vote, in pursuance of an act of the 
legislature, while the injunction was in force. It was held com- 
petent for the town, under the authority conferred by the legisla- 
ture, to ratify the vote, notwithstanding the fact that the town was 
under injunction, and that, by such ratification, the vote and the 
proceedings under it became valid and binding on the town. 7 
When a vote of a town meeting to appropriate money for military 
bounties is invalid, for want of power to make the appropriation 
and for want of notification, the effect of a subsequent statute 
referring to such vote as given, " without authority of law," and 
authorizing the town, at a meeting legally called, to confirm its 
previous action, and also declaring that, if confirmed, it was to be 
" considered good and valid, in the same manner as if such towns 
had the inherent legal power to so appropriate money," will be 
that the invalidity of the vote will be cured, not only as to the 
want of power to make the appropriation, but also as to the want 

1 Stat. E. I. 1863. . 5 Jones v. Waterbury, 44 Verm. 113. 

2 Fiske v. Hazard, 7 E. I. 438. 6 Laughton v. Putney, 43 id. 485. 

3 Cover v. Baytown, 12 Minn. 124. 7 Waldo V • Portland, 33 Conn. 363. 

4 Cox v. Mt. Tabor, 41 Verm. 28. 

15 



226 

of due notification. 1 A town meeting having, without legal au- 
thority, voted a bounty to drafted men, the legislature subsequently 
authorized towns to confirm such votes, whereupon the town voted 
not to confirm, and afterwards the legislature enacted as follows : 
vC If any town has, in any manner, appropriated money for assist- 
ing persons who have been drafted who have personally, or by 
substitute, entered the service of the United States to fill its quota, 
the action of such town, or towns, is hereby ratified and confirmed 
and declared to be legal and binding upon the inhabitants of such 
town, or towns." Upon a bill brought to vacate an injunction pre- 
viously granted, it was held that it was competent for the legislature 
to pass the act, and that its effect was to validate the action of the 
town, although not confirmed by the town meeting. 2 

§ 267. It was provided by statute as follows: "Any town, or 
city, may raise, by taxation, or otherwise, such sums of money as 
may be necessary to pay and refund any money which has already 
been paid and applied, by such city, or town, or contributed by 
individuals, in aid of and for the purpose of filling its quotas, or 
furnishing men, for the present war, under any requisition, order, 
or call of the president, or of the war department, of the United 
States, during the year eighteen hundred and sixty-four." 3 The 
supreme court of Massachusetts decided that this statute did not 
empower any town, by a vote to refund money which had been 
contributed by individuals, for the purpose of filling its quota of 
troops, under a call of the president, to create a debt of the town 
in favor of an individual who had contributed money for that 
purpose, or to subject the town to garnishment, in an action 
against such individual, to recover money subscribed, but not paid, 
by him. 4 A statute ratifying "the acts and doings of cities and 
towns, in paying, or agreeing to pay, bounties and recruiting ex- 
penses, for soldiers already furnished by them, upon the requisi- 
tion of the United States," 5 does not legalize a vote of the 
inhabitants of a town to pay a bounty to persons who had pre- 
viously enlisted in the service of the United States. 6 

i 

1 Baldwin v. North Branford, 32 Conn. 92 ; Cole v. Bedford, 97 Mass. 326 ; 
47. Estey v. Westminster, id. 324. 

2 Bartholomew v. Harwinton, 33 id. 5 Stat. Mass. 1863, c. 3*8. 

408; Potters. Canaan, 37 id. 222. 6 Fowler v. Danvers, 8 Allen (Mass.), 

s Stat. Mass. 1865, c. 152, s. 1. 80. 

4 Shepard v. Turner, 13 Allen (Mass.), 



227 

§ 268. A statute, submitting the question of the relocation of a 
county seat to a popular vote, does not involve a delegation of legis- 
lative power. 1 Where a statute authorizes a special election, for a 
change of county seat, but provides no method of holding it, the 
election is legal, if conducted in accordance with the general election 
law. 2 Equity will not interfere to restrain the removal of a county 
seat, in accordance with a vote of the people, at the suit of a person 
who took part in the election, on the ground that insufficient 
notice had been given of the election. 3 An election for the 
location of a county seat cannot be contested in a proceeding in 
equity. 4 The term "proceeding," in a statute providing that 
" the repeal of a statute does not * affect any * proceed- 
ing commenced under, or by virtue of, the statute repealed," is 
restricted to the steps, or measures, adopted in the prosecution, 
or defence, of actions in courts. It does not apply to an election 
held to determine the location of a county seat. 5 Where special 
provision is made, by statute, for the trial of any contested elec- 
tion, held on the question of the removal of the county seat, 
allegations of fraud and illegality, in conducting the election, can 
be inquired into only on a trial had pursuant to the statute. They 
constitute no ground for the interference of a court of equity, by 
injunction, to restrain a defendant from the performance of official 
acts in connection with the election. 6 

§ 269. It is competent for the legislature to provide that, in a 
viva voce election, held for the determination of the question of 
the removal of a county seat, only the names of those voting for 
the removal shall be recorded ; that if they constitute a majority 
of all the qualified voters of the county, the county seat shall be 
removed, and that the persons assessed for county levy, or poll 
tax, on the assessor's books, shall be regarded as the voters of the 
county, for the purpose of determining whether the persons, who 
vote for the removal, constitute a majority of all the voters of the 
county. 7 A statutory provision that " the sheriff shall make his 
returns to the judge, or chairman, of the county court, and, at its 
next quarterly session after the election, the vote cast shall be 

'McWhirter v. Brainard, 5 Oregon, 4 McWhirter v. Brainard, 5 Oregon, 

426. 426. 

2 Wells v. Taylor, 5 Mont. 202. 5 Gordon v. State, 4 Kan. 489. 

3 Ellis v. Karl, 7 Neb. 381. 6 Peck v. Weddell, 17 Ohio St. 271. 

T Hall v. Marshall, 80 Ky. 552, 



228 

counted and the result declared, and if the proposition to 
remove the county seat receive the requisite number of votes, 
then the county court shall proceed to make all the necessary 
provisions for the removal," 1 confers, not judicial, but only 
ministerial, powers upon the county court. 2 When the first sec- 
tion of an act, authorizing an election, on the question of the 
removal of the county seat, declares that the removal shall take 
place, after effect shall have been given to its terms, " as hereinafter 
provided," subsequent sections, which provide when the first shall 
take effect, are virtually incorporated into the first, so that the 
adoption of the first section, by the electors of the county, neces- 
sarily implies an approval and adoption of the terms and con- 
ditions expressed in the subsequent sections. The subsequent 
sections are, therefore, not repugnant to a constitutional provision 
requiring that all laws, for the removal of county seats, shall, 
before taking effect, be submitted to the electors of the county, 
and adopted by the vote of a majority of such electors ; nor is the 
act invalidated by the fact that it, in terms, provides only for the 
submission of the first section to the vote of the electors. The 
validity of such an act is not affected by the provision that it is to 
take effect upon a specified contingency, and at a time not defi- 
nitely fixed. 3 

§ 270. Under a statute authorizing townships to subscribe to 
the capital stock of any railroad company within the state, 
" building, or promising to build, a railroad into, through, or near 
such township," 4 a vote of the people to subscribe to the capital 
stock of a company, promising to build a railroad within nine 
miles of the township, may be valid, as between the township and 
a hona fide holder of its bonds. 5 A statute, declaring that " any 
county, in this state, may subscribe to the stock of any railroad, 
in this state : * Provided, That the amount of such sub- 
scription shall not exceed one hundred thousand dollars, and the 
consent of the inhabitants of such county to such subscription 
shall be first obtained, in the manner hereinafter provided," does 
not restrict the county to a single subscription of one hundred 
thousand dollars, but, under a vote authorizing two subscriptions, 

2 Stat. Tenn. 1873, c. 103, s. 7. 4 Stat. Mo. March 23, 1868. 

2 Bouldin v. Lockhart, 3 J. Baxt. 262. 5 Kirkbridge v. County, 108 U. S. 208. 

3 Peck v. Weddell, 17 Ohio St. 271. 



229 

of one hundred thousand dollars each, to the capital stock of dif- 
ferent railway companies, valid subscriptions may be made. 1 A 
municipal election, held, without authority of law, on the question 
of subscribing to the capital stock of a railway company, and a 
subscription made in pursuance thereof, without authority of law, 
may be validated, by subsequent legislation, so that coupons of 
the bonds will be valid obligations of the municipality, in the 
hands of bona fide holders. 2 Under a constitution providing that 
" no county shall subscribe for stock, in any incorporated com- 
pany, unless the same be paid for at the time of subscription ; nor 
shall any county loan its credit to any incorporated company, nor 
borrow money, for the purpose of taking stock in any such com- 
pany ; nor shall the general assembly ever, on behalf of the state, 
assume the debts of any county, city, town, or township, nor of 
any corporation whatever," 3 it is competent for the legislature to 
authorize a city, whenever a majority of the qualified voters of the 
city shall require it, to subscribe to the capital stock of a railway 
company, unless the power of the legislature is restrained by other 
provisions of the constitution. The power so conferred is a legiti- 
mate part of the authority of a municipal corporation. 4 

§ 271. A general statute of the state of Iowa contained the fol- 
lowing clauses : " The county judge may submit to the people of 
his county, at any regular election, or at a special one called for 
that purpose, the question whether money may be borrowed to aid 
in the erection of public buildings ; whether the county will con- 
struct, or aid to construct, any road, or bridge, which may call for 
an extraordinary expenditure ;" 5 and " all such notices shall name 
the time when such question will be voted upon, and the form in 
which the question shall be taken ; and a copy of the question 
submitted shall be posted up, at each place of voting, during the 
da} T of the election." 6 It was held that a vote of aid to a rail- 
road company was authorized by the statute, and was not in con- 
flict with the constitution ; 7 that in an election, held upon a 

1 County v. Lewis, 103 U. S. 164. stock of a railway company, " was, in its 

2 Quincy v. Cooke, 107 id. 549. essence, a right and privilege of the rail- 

3 Const. Ind. 1851, art. 10, s. 6. road company." 

4 Aurora v. West, 9 Ind. 74. 5 Code Iowa, 1851, p. 23, s. 114. 
In Empire v. Darlington, 101 U. S. 87, 6 Id. p. 24, s. 115. 

Mr. Justice Harlan said that the power 7 Dubuque County v. Railroad Co. 4 

conferred, by statute, upon a township, Iowa, 1 ; State v. Bissell, id. 328. The 
to make a subscription to the capital court was divided in each of these cases. 



230 

proposition to issue county bonds, for stock in the Lyons Iowa 
Central Railroad Company, a ballot " For the Lyons Railroad 
Company," or "Against the Lyons Railroad Company," was suffi- 
ciently explicit ; and that, a majority of the votes having been cast 
" For the Lyons Railroad Company " under a proclamation direct- 
ing a vote of the people for, or against, issuing bonds to a railway 
company, the bonds to be issued " only in the event of said rail- 
road being constructed and running centrally through the county," 
the county judge had the right to issue the bonds, when it was 
made satisfactorily to appear to him that the railroad was about 
to be built. 1 

§ 272. Where a statute authorizes county officers to submit, to 
a vote of the electors, a proposition for a subscription, by the 
county, to the capital stock of a railway company, an election, at 
which a single proposition for a subscription to the stock of two 
or more companies is submitted, is unauthorized and void. 2 Under 
a statute authorizing a town to determine, by vote, whether it will 
subscribe to the capital stock of a railway company, and requiring 
the supervisor of the town to make the subscription, if voted, the 
town may order a conditional subscription, and the supervisor 
will have no power, in making the subscription, to disregard the 
conditions imposed ; nor will the railway company have any right 
to demand an unconditional subscription. 3 Under a statutory 
enactment that " the board of county commissioners of any 
county to, into, through, from, or near, which any railroad is, or 
may be, located, may subscribe to the capital stock of any such 
railroad corporation, in the name and for the benefit of such 
county, * but no such bonds shall be issued until the ques- 
tion shall first be submitted to a vote of the qualified electors of 
the county," 4 it was held, by the supreme court of Kansas, that a 
vote on the question whether a county should make a subscription to 
the capital stock of any railroad company then organized, or there- 
after to be organized, which should " construct a railroad commenc- 
ing at a point on the Tebo and Neosho railroad, running westward, 
via Fort Scott," no existing corporation being named as the recip- 
ient of the subscription and bonds, was without warrant of law 
and void. 5 The supreme court of Kansas, in a subsequent case, 

1 State v. Bissell, 4 Iowa, 328. "Laws Kan. 1866, 72. 

2 Lewis v. Commissioners, 12 Kan. 186. B Lewis V. Commrs. Bourbon Co. 12 
8 People v. Dutcher, 56 111. 144. Kan. 186. 



231 

affirmed this decision that a vote to subscribe to the stock of a 
corporation not named was void. 1 

§ 273. Under statutory provisions authorizing the electors of a 
town to vote a donation to a railway company, to aid in the con- 
struction of its road, and to levy and collect taxes to pay the 
donation, and also to borrow money to pay it, and to issue interest- 
bearing bonds for the payment of the loan, the railway company 
cannot be compelled to receive bonds, in payment, nor can the 
municipal authorities be compelled to issue bonds to the railway 
company, which can neither demand, nor be compelled to accept, 
anything but money. 2 A saving clause in a constitution, in favor 
of municipal subscriptions to railroads, or private corporations, 
" where the same have been authorized, under existing laws, by a 
vote of the people of such municipalities, prior to" 3 the adoption 
of the constitution, does not apply to any case in which the sub- 
scription is not wholly consummated before the adoption of the 
constitution. 4 Statutes of Illinois, enacted in 1874 and 1877, 
declaring that, after the first day of July, 1880, no bonds shall be 
issued, or stock subscribed, to any railway company, upon the 
authority of any previous election, are only statutes of limitation, 
prescribing the reasonable time within which the issue of the 
bonds may be enforced, and are not obnoxious to the objection 
that they impair the obligation of contracts. 5 Under a law author- 
izing any town to make donations to railway companies, upon an 
affirmative vote of the electors, and declaring that no election 
shall be held to determine the question of such donation, until 
the proposition of the railroad company, to the inhabitants of the 
town, shall have been filed and published, an election, held in the 
absence of such proposition, is void ; and a donation, made in 
pursuance of such election, cannot be sustained. 6 

§ 274. When the law requires the assent of a town, to a subscrip- 
tion to the capital stock of a railway company, to be indicated by 
a two-thirds vote, a majority of the voters. may recall such assent, 
before it has become binding, by the acceptance of the town's pro- 
posal by the railway company. If there be any doubtful question, 
under such a proposition, it would seem to be whether even a 

1 Kailroad Co. v. Commrs. 12 Kan. 230. 4 Lippincott v. Pana, 92 111. 24. 

2 Kailway Company v. Town, 101 111. 5 People v. Town, 104 id. 285. 
151. 6 Lippincott v. Pana, 92 id. 24. 

3 Const. 111. 1870. 



232 

minority of the voters, if exceeding one-third of the whole, can- 
not rescind, or withdraw, the former vote. 1 It is not necessary 
that a proposition, submitting, to a vote of the people of a county, 
the question whether the bonds of the county shall be issued, in 
payment of a subscription to the capital stock of a railroad com- 
pany, should specify the rate of interest to be paid on the bonds, 
or the time for the payment of such interest, if the rate of tax 
proposed and the whole amount to be paid be stated. Nor is it 
necessary to state at what time the proposition, if carried, will 
take effect. 2 Under a constitution declaring that "no county, 
city, town, township, or other municipality, shall ever become 
subscriber to the capital stock of any railroad, or private corpora- 
tion, or make donation to, or loan its credit in aid of, such cor- 
poration : Provided, hovjever, That the adoption of this article 
shall not be construed as affecting the right of any municipality 
to make such subscriptions, when the same have been authorized, 
under existing laws, by a vote of the people of such municipalities, 
prior to such adoption," 3 it was held that, in a suit to enforce the 
issue of municipal bonds to a railroad company, the burden of 
proof was on the railway company to show affirmatively that the 
issue of the bonds had been authorized by a vote of the people, 
had pursuant to law, before the adoption of the constitution, and 
that, when the law required the election to be held by three judges 
and two clerks, and it was in fact held by the moderator of a town 
meeting and one clerk, the election was void. 4 

§ 275. It has been held, by the supreme court of Kansas, that 
when the county commissioners, in submitting to a vote of the 
electors a proposition to make a subscription, for the county, to 
the capital stock of a railway company, omitted to prescribe, by 
order, the time and place of canvassing the vote, a canvass made 
by the commissioners, which showed a majority in favor of the 
proposition, the canvass appearing on its face to be partial and 
not to include the returns of all the townships, did not conclude 
the county on the question of the vesting of authority in the commis- 
sioners to make the subscription, and was notice to put all persons 
on inquiry as to the state of the vote ; and that, when the uncan- 

1 Kailway Co. v. Unity, 62 Me. 148. 3 Const. 111. 1870. 

'Whittaker v. The County, 10 Iowa, 4 Kailway Company v. Mallory, 101 

161. 111. 583. 



233 

vassed township returns were filed in the county clerk's office, on 
the day of the canvass, and were placed and remained with the 
other returns, all persons were charged with notice of the actual 
result of the election. 1 When the question of levying a tax, in 
aid of a railway company, was submitted to the voters of a town- 
ship, and the trustees, in the exercise of authority conferred upon 
them by law, prescribed for the ballots the words, " For taxation," 
or " Against taxation," and certain electors cast ballots having the 
words: " Against Taxation. For the benefit of railroad companies, 
or any other monopolies. To the indebtedness of the poor man ; " 
it was held that all the words inscribed upon the ballot, after the 
words "Against taxation," were appended by way of argument, 
and that the ballots were to be counted. 2 

§ 276. The statutes of Texas contained the following provision : 
" If two-thirds of those voting shall vote in favor thereof, such an 
amount will be raised, by taxation, not to exceed one-half of one 
per cent, in addition to the pro rata of the available school fund 
received from the state, as may be necessary to conduct the 
schools for ten months in the year." 3 The supreme court of the 
state decided that, where such election had been duly held, the 
returns duly canvassed, and the . result lawfully declared, and no 
proceeding had been instituted to contest the election, or to secure 
a revision of the determination of the result, it was not competent 
to contest the election, or question the result, in a proceeding by 
injunction to restrain the collection of the tax. 4 Under a statute 
authorizing the organization of a school district, embracing terri- 
tory both within and without an incorporated town, in pursuance 
of a vote of the legal electors of the district, it is not essential to 
the validity of such an organization that the voters, residing within 
and without the town, should be in a certain ratio to each other, 
or that any particular number of the qualified electors should 
vote, at the election, or that the votes should all be lawful, pro- 
vided that a majority of the lawful votes were cast in favor of the 
organization. No such grounds will lie for ouster of directors 
elected under such organization, when there is a general acqui- 
escence in the organization and election, until the issue of bonds 
by the district, and the erection of a school house from the pro- 

'• Lewis v. Commissioners, 12 Kan. 186. 3 Rev. Stat. Tex. 1879, art. 3785. 

2 Gattell v. Lowry, 45 Iowa, 478. 4 Dwyer v. Hackworth, 57 Tex. 245. 



234: 

ceeds. To authorize the ouster of the directors, on the ground of 
their failure to receive a plurality of the qualified votes, such 
failure must be affirmatively shown. 1 An election, appropriating 
a specified sum for a school-site, school-building, and furniture, 
without an apportionment of the appropriation to the several 
objects, is void. 2 But a tax-payer, who attends an election, held 
in a school district, and in person seconds a motion to raise 
money by borrowing and issuing bonds of the district, will be 
estopped from questioning the validity of what has been done, 
under the authority of those proceedings, although the notice of 
such meeting was fatally defective ; and he will not be permitted 
to dispute the legality of a tax levied to pay the interest or prin- 
cipal of such bonds, when issued under the vote of such meeting. 3 
§ 277. A town voted to abolish the school-district system, and 
also, at the same meeting, voted " to continue the same, with the 
sanction of the school committee," until a certain day. Before 
the day so fixed, the town, at another meeting, under an appro- 
priate article in the warrant, voted to " reconsider " the vote 
abolishing the school districts, and not to abolish them. It did 
not appear that, under the former vote, and prior to the latter, 
any actual change had taken place in the management, or control, 
of the school houses, or property. The supreme court of Massa- 
chusetts decided that the latter vote was effectual to rescind the 
former and to continue the school-district system ; and that a by- 
law of the town, prescribing the conditions on which a motion for 
a reconsideration of a vote might be made, was not applicable to 
the present case, the subject having been brought before the town 
at a new meeting, and by virtue of a proper article in the warrant. 4 
Under a statute prohibiting the re-establishment of school districts, 
except "by a vote of two-thirds of the legal voters present and 
voting thereon," 5 a vote "tore-establish the school-district sys- 
tem," is insufficient, unless the record of the election shows the 
fact that two -thirds of the legal voters, present and voting on the 
question, voted therefor ; parol proof of the fact is not admissible. 
Although the clerk may amend the record, according to the facts, 

1 State v. Board of Education, 64 Mo. 4 Morse v. Dwight, 13 Allen (Mass.), 
53. 163. 

2 State v. Duryea, 40 N. J. 266. 5 Stat. Mass. 1870, c. 196. 

3 Thatcher v. People, 98 111. 632. 



235 

an amendment, in the following form, will not be sufficient : " No- 
vember 2, 1877. I hereby amend the preceding record of the 
March meeting, 1871, from the best of my knowledge and recol- 
lection, that the vote to re-establish the school-district system was 
passed by two-thirds the legal voters present and voting thereon. 
The vote was not so declared, by the moderator, nor was the vote 
on either side counted, but, from my knowledge and recollection, 
I have no doubt but that the above is according to the truth." 1 

§ 278. If the legislature authorize a municipal corporation to 
vote a donation, or subscription, to secure the location and erec- 
tion of a public building, a vote authorizing the same will create 
a legal liability. The courts cannot inquire into the propriety or 
policy of such legislation. 2 A statute contained the following 
provision : " The county judge may submit to the people of his 
county, at any regular election, or at a special one called for that 
purpose, the question whether money may be borrowed to aid in 
the erection of public buildings, whether the county will construct, 
or aid to construct, any road, or bridge, which may call for an 
extraordinary expenditure." 3 A statute, subsequently enacted, con- 
tained the following provision : "It shall not be competent for 
said board of supervisors to order the erection of a court house, 
jail, poor-house, or other building, or bridge, nor the purchase of 
real estate for county purposes, when the probable cost will ex- 
ceed two thousand dollars, until a proposition therefor shall have 
been first submitted to the legal voters of the county, and voted 
for by a majority of all voting for and against such proposition, 
at a general election." Under these statutory provisions it was 
held that the board of supervisors had no power to submit a 
proposition to raise money, by taxation, and appropriate the same 
to the construction of bridges, at a special election ; that such 
proposition could only be submitted at a general election. 4 

§ 279. In actions brought upon bonds of municipal corporations 
issued to railway companies, by municipal officers, in the exercise 
of authority derived from votes of the electors, the supreme court 
of the United States has established the doctrine that, in favor of 
bona fide holders, without notice, the recitals of the bonds are 
conclusive evidence of the regularity and validity of the election, 

1 Judd v. Thompson, 125 Mass. 553. 3 Eev. Stat. Iowa, 1860, 40. 

2 Supervisor v. People, 84 111. 544. 4 Yant v. Brooks, 19 Iowa, 87. 



236 

and of the validity of the authority of the officers to issue the 
bonds. On this question the state courts are not altogether in ac- 
cord with the supreme court of the United States. Where a mu- 
nicipality has lawful power to issue bonds, or other negotiable secu- 
rities, dependent only upon certain preliminary proceedings, as for 
example a popular election of the constituent body, the holder in 
good faith has the right to assume that such preliminary proceed- 
ings have taken place, if the fact be certified, on the face of the 
bonds, by the authorities whose primary duty it is to ascertain it. x 
Where power was given to county commissioners to subscribe stock, 
to be paid for by county bonds, in aid of a railroad corporation, 
the power to be exercised if the electors, at an election duly called, 
should approve the subscription, it was adjudged, by the supreme 
court of the United States, that inasmuch as the power existed, 
and the statute committed to the board of commissioners authority 
to decide whether the election was properly held, and whether the 
subscription was approved by a majority of the electors, the re- 
cital, in bonds executed by those commissioners, that they were 
issued in pursuance of the statute conferring the power, estopped 
the county from alleging, or proving, to the prejudice of a bona 
fide holder, that requisite notices of the election had not been 
given. 3 

§ 280. Where, by legislative enactment, authority has been given 
to a municipality, or to its officers, to subscribe to the capital stock 
of a railway company, and to issue municipal bonds in payment, 
on some precedent condition, such as a popular vote favoring the 
subscription, and when it may be inferred from the statute that 
the officers of the municipality were invested with power to decide 
whether that condition has been complied with, their recital that 
it has been, made in the bonds issued by them and held by a bona 
fide purchaser, is conclusive of the fact, and binding upon the 
municipality ; for the recital itself is a decision by the appointed 
tribunal. 3 It has been held, by the supreme court of Kansas, 
that when bonds, purporting on their face to have been issued 
" by order of the board of commissioners of the county of Bour- 
bon, dated March 8, 1867," contained no recitals of an election, 

'Panaw. Bowler, 107 U.S. 529;Lynde#. 3 Town of Coloma v. Eaves, 92 U. S. 

The County, 16 Wall. 6. 484. 

2 Commissioners v Aspinwall, 21 How. 
539. 



237 

or of proceedings of the county board, every purchaser and holder 
of the bonds was chargeable with notice of whatever appeared 
upon the county records, and that, if the records showed that the 
election, from which the commissioners derived their authority to 
issue the bonds, was void, the county might avail itself of this 
defence, in an action brought by a bona fide, holder, who had pur- 
chased the securities, without notice of want of authority for the 
issue of the bonds. 1 

§ 281. Kecitals that " this bond is issued by the board of school 
directors, by authority of an election of the voters of said school 
district, held on the thirty-first day of July, 1869, in conformity 
with the provisions of chapter 98 of acts 12th general assembly 
of the state of Iowa," imply that the election was lawfully held, 
and that the bonds were issued by authority of the election, but 
do not necessarily import a compliance with those statutory pro- 
visions, which, following substantially the words of the state 
constitution, prohibit the school district from incurring indebt- 
edness, " to an amount, in the aggregate, exceeding five per centum 
on the value of its taxable property, to be ascertained by the last 
state and county tax lists previous to the incurring of such indebt- 
edness." 2 Under statutes authorizing county commissioners to 
submit to the people, at special elections, the question whether the 
county shall subscribe to the capital stock of a railroad company, 
and issue bonds in payment thereof, and providing that, if the 
subscription shall not be authorized by the county, then the ques- 
tion of subscriptions by township trustees may be submitted to 
the voters of the respective townships, until the county shall refuse 
to subscribe, either by a direct vote, or by a failure within a 
reasonable time to hold an election for the purpose, the townships 
are without legislative authority to subscribe, or to issue bonds in 
payment of subscriptions, and the bonds are not valid, even in the 
hands of bona fide holders, without notice; for the question of 
legislative authority to issue bonds, in aid of a railway company, 
cannot be concluded by mere recitals in the bonds, although the 
municipality may be estopped by such recitals from showing 
irregularities in the exercise of such authority, or from question- 
ing the certificates of officers charged, by law, with the duty of 

1 Lewis v. Commissioners, 11 Kan. 186. 2 School District v. Stone, 106 U. S. 

183. 



238 

determining the performance of conditions prescribed for the 
exercise of the power. 1 

§ 282. Under a constitution declaring that " the legislature shall 
not authorize any county, city, or town, to become a stockholder in, 
or lend its credit to, any company, association, or corporation, 
unless two-thirds of the qualified voters of such county, city, or 
town, at a special election, or regular election, to be held therein, 
shall assent thereto," 2 no just distinction can be made between a 
donation and a subscription for stock or loan of credit. To recog- 
nize such a distinction is to disregard the fundamental theory 
upon which municipal aid to railroads is granted. That is not to 
make the municipality a stockholder, for dividends on stock, or 
direct returns from an investment for profit, but to aid the enter- 
prise, in consideration of expected benefits to result to the public 
from its success. 3 

§ 283. The legislature cannot constitutionally authorize a town 
to loan its credit, by a vote of its citizens, to private persons, in 
consideration of the erection and maintenance of a manufacturing 
» establishment within the town, by such persons, for their own bene- 
fit. It is for the courts, and not the legislature, to determine 
whether the use, for which private property is taken, in a given 
case, is, or is not, a public use. A perpetual injunction will be 
granted to restrain the issue of bonds in such a case. 4 

Northern Bank v. Porter Township, 3 Kailroad Co. v. McDonald, 53 Miss. 

110 U. S. 608. 240. 

2 Const. Miss. art. 12, s. 14. 4 Allen v. Inhabitants of Jay, 60 Me. 

124. 



CHAPTEE XIII. 

POWER TO REGULATE TIME, PLACE, AND MANNER OF ELECTION. 





Secs. 


(3) State constitutions ; 


ordi- 


nances; schedules 


. 290-296 


(4) Acts of congress . 


. 297 


(5) Governors of states 


298, 299 


(6) Indians 


. 300 


3. State officers 


301-308 



Secs. 

1. General, special, regular, annual 

elections ..... 284 

2. Senators and representatives in 

congress. 

(1) Constitution of the United 

States . . . 285-287 

(2) State legislatures . . 288, 289 



§ 284. Eegular elections, which are held at times prescribed 
by constitutional, or statutory, provisions, are either general elec- 
tions, at which the great body of elective officers are chosen, or 
limited elections, at which only a few are chosen, as, for example, 
judicial elections, or charter elections. Special elections, which 
are held at times prescribed by public officers, usually to fill casual 
vacancies, are ordinarily limited elections ; but they might be gen- 
eral elections, if the constitution, or laws, should so provide. In 
Maryland a general election is usually understood to be one at 
which the great body of state, county, and township officers are 
chosen ; but an election, held throughout the state for the choice 
of one, or more, classes of officers, has been held to be a general 
election. 1 In California a general election is one held to fill an 
office, upon the expiration of a full term; 2 special elections are 
such as are held to supply vacancies in any office, and are held at 
such times as may be designated by the proper board of officers. 3 



1 Mackin v. State, 62 Md. 244. 

2 CodeCal. 1043. 

3 Kenfield v. Irwin, 52 Cal. 164. 

The term "general election," when 
used in statutory enactments, has not 
always the same signification. In its strict 
sense the general election of a state is that 
election at which the great body of the 
officers of the state are chosen, and is dis- 
tinguishable from elections at which only 
a small number of officers are chosen, as 
the judicial election, at which judicial 



officers are chosen, the municipal elec- 
tion at which city officers are chosen, or 
the presidential election at which elect- 
ors of president and vice-president are 
chosen, which latter elections, although 
not "general,"' are as "regular," in 
point of time, place, and manner, as the 
general election itself. Sometimes, how- 
ever, the term "general election" is 
applied to a regular election, as distin- 
guished from an extraordinary election, 
which latter is often styled a special 



239 



240 

§ 285. " The times, places, and manner of holding elections for 
senators and representatives shall be prescribed in each state by 
the legislature thereof ; but the congress may at any time, by law, 
make or alter such regulations, except as to the places of choosing 
senators." * When vacancies happen in the representation from any 
state, the executive authority thereof shall issue writs of election 
to fill such vacancies. 2 The power to regulate the time, place, and 
manner of choosing presidential electors is vested in the state legis- 
latures. 3 There can be no valid election, except by virtue and in 
pursuance of constitutional, or statutory, authority and regula- 
tion. 4 

§ 286. Under that clause of the constitution which declares that 
«' the times, places, and manner of holding elections, for senators 
and representatives, shall be prescribed, in each state, by the 
legislature thereof ; but the congress may, at any time, by law, 
make, or alter, such regulations, except as to the place of choosing 
senators," congress has a supervisory power over the subject, and 
may either modify, or add to, regulations made by a state, or make 
entirely new regulations. The proposition that congress cannot 
meddle with such elections at all, without assuming entire and ex- 
clusive control of them, has no support in the constitution. In 
the exercise of this supervisory power congress may impose new 
duties, on the officers of election, or additional penalties for breach 
of duty, or for the perpetuation of frauds ; or provide for the 
attendance of officers, to prevent frauds and to see that the elec- 
tions are legally and fairly conducted. The exercise of such power 
can cause no collision of regulations, or jurisdiction, because the 
authority of congress over the subject is paramount, and any regu- 
lations made by congress necessarily supersede inconsistent regu- 
lations made by the states. The provision which authorizes the 
deputy marshals to keep the peace, at congressional elections, is 
not unconstitutional. The national government has the right to 
use physical force, in any part of the United States, to compel 
obedience to its laws, and to carry into execution the powers 

election, without regard to the number 1 Const. U. S. art. 1, s. 4. 

of officers chosen. The signification of 2 Id. s. 2. 

the terms "general election," "regular 3 Id. art. 2, s. 1. 

election," and "special election," is 4 McKuue v. Weller, 11 Cal. 49; People 

therefore to be determined, in each case, v. Matthewson, 47 id. 442. 

by the peculiarities of that case. 



241 

conferred upon it by the constitution. So also the provisions 
adopted for compelling the state officers of election to observe the 
state laws regulating the election of representatives, not altered by 
congress, are within the supervisory power of congress over such 
elections. The duties to be performed, in this behalf, are due to 
the United States, as well as to the state ; and their violation is 
an offence against the United States, which congress may right- 
fully prohibit and punish. This necessarily follows from the 
direct interest which the national government has in the due elec- 
tion of representatives in congress, and from the power conferred 
by the constitution over the subject. 1 

§ 287. Congress had power, under the federal constitution, to 
enact; section 5515 of the revised statutes, which makes it a penal 
offence against the United States for any officer of an election of 
representative in congress to violate, or neglect, any duty relating 
to such election, whether imposed by a law of the state, or by a 
law of the United States, or knowingly to do any act forbidden by 
such law, with intent to affect the election, or to make a fraudu- 
lent certificate of the result. Congress also had constitutional 
power to enact section 5522 of the revised statutes, which makes 
it a penal offence for any officer, or other person, with, or without, 
process, to obstruct, hinder, bribe, or interfere with, a supervisor 
of election, or marshal, or deputy marshal, in the performance of 
any duty imposed by any law of the United States, or to prevent 
their attendance, at the places of registration, or election. Con- 
gress also had power to enact sections 2011, 2012, 2016, 2017, 
2021, and 2022, of the revised statutes, which authorize the circuit 
courts to appoint supervisors of such elections, and the marshals 
to appoint special deputies to assist them, and prescribe the duties 
of such supervisors and deputy marshals. 2 

§ 288. The power to regulate the time, place, and manner of 
choosing representatives in congress, and presidential electors, 
being expressly conferred upon the state legislatures, by the con- 
stitution of the United States, 3 the question whether the legisla- 
ture may alter or disregard provisions of state constitutions relat- 
ing thereto involves the questions, elsewhere considered, 4 whether, 
in the sense of the constitution of the United States, a constitu- 

1 Siebold's case, 100 U. S. 371. 3 Const. U. S. art. 1, s. 4; id. art. 2, s. 1, 

2 lb. 4 Post, §§290-296, 

16 



242 

tional convention is a state legislature, and is of authority para- 
mount to that of the ordinary legislature. The constitutional 
provision, investing the legislature of each state with power to 
prescribe the time for holding elections of representatives in con- 
gress, is fully satisfied by a statute making such election simulta- 
neous with the general election held on a day fixed by the consti- 
tution of the state. 1 

§ 289. The proposition that it is competent for the state legisla- 
ture to prescribe the time for choosing representatives in congress, 
by providing that the election shall be held on the day of the 
occurrence of some other event, without a specific designation of 
the day, seems to be supported b} r the practice of the states. 
From 1803 to 1843 in no srngle instance was an election of repre- 
sentatives in congress held, in the state of Virginia, on a day 
specifically designated by the legislature for that purpose. Every 
such election was held on the day of the happening of some other 
event, the occurrence of that other event being left to the proper 



1 Wilsons. Davis, Smith, 108; Martin 
v. Hagans, id. 

In the West Virginia cases, in which 
this doctrine was established by the 
house of representatives, it was insisted 
that a state legislature could not consti- 
tutionally enact that representatives in 
congress should be chosen at the occur- 
rence of the general election, fixed by 
the state constitution, because that 
would be a delegation of a part of the 
power conferred by the federal consti- 
tution upon the legislature, and the 
time of the election would be fixed part- 
ly by the state constitution, and not 
wholly by the state legislature ; that if 
the time for choosing representatives 
should be fixed at the occurrence of some 
other event, it would be necessary that 
the occurrence of that event should 
also be determined by the legislature, in 
order to fulfil the requirement of the 
constitution. In answer it was said that 
the same reasoning would make it un- 
constitutional for the state legislature to 
fix the time for electing representatives 



in congress, at the occurrence of the 
autumnal equinox, unless the legisla- 
ture should also fix the occurrence of the 
equinox, for otherwise a part of the pow- 
er conferred by the constitution would 
be exercised by nature, instead of the 
stale legislature ; that the designation 
of the occurrence of the general election, 
provided for in the state constitution, as 
the time for the choice of representa- 
tives, is no more a delegation of powers 
of the legislature, to the framers of that 
constitution, than would be the designa- 
tion of the setting of the sun, as the 
time for closing the polls, at elections of 
representatives in congress, a delegation 
of legislative powers to the framer of the 
laws of nature ; and that it was well set- 
tled, by the authorities, that the legisla- 
ture could make the operation, or sus- 
pension, of a statute to depend upon a 
contingency. States. Parker, 26 Verm. 
363 ; Aurora v. United States, 7 Cranch, 
382 ; Peck v. Weddell, 17 Ohio St. 271 ; 
Cooley Const. Lim. 116. 



243 

authorities to regulate. By the acts of 1803 1 and 1813 2 the elec- 
tion was fixed on the first day of the April court. At that time 
there were twenty-three congressional districts in the state of 
Virginia. The county courts, first called monthly courts, were 
held in each county every month. The terms commenced on 
different days in the different counties. The first day of 
the term was called the court day. The court days in the 
several counties were fixed by acts of the legislature, and were 
subject to constant changes. During the period of forty years 
through which the practice of electing representatives to congress 
on court days extended, the legislature rarely met without chang- 
ing the court days in one or more counties. And while the law 
of February 6, 1813, was in force, namely, on the second day of 
March, 1819, a general law 3 was passed re-arranging the court 



1 By the act of January 13, 1803, it was 
provided as follows : " 1. Be it enacted 
by the General Assembly, That the elec- 
tion of the members of the legislature of 
this commonwealth, and of the members 
of the house of representatives of the 
United States to which this state is enti- 
tled, shall be held, in the several counties 
and corporations, on the respective court 
days, in the month of April." 

2 Ten years later, on the 6th of Febru- 
ary, 1813, this law was re-enacted in the 
following words, to be found on page 151 
of the Revised Code of 1819 : "2. And be 
it further enacted, That the persons 
qualified by law to vote for members of 
the house of delegates, in each county, 
city, and borough composing a district, 
shall assemble, at their respective court 
houses, or other places appointed by law 
for holding elections, on the first day of 
their April court, in the year one thou- 
sand eight hundred and thirteen, also on 
the first day of their April court in every 
second year thereafter, and there and 
then vote for some discreet and proper 
person, qualified according to the consti- 
tution of the United States, as a member 
of the house of representatives of the 
United States." 

3 The following are the words of the act 



of March 2, 1819: "15. The days on 
which the courts of the said counties 
and corporations shall commence their 
sessions in each month of the year shall 
be as follows : The court day of the 
county of Accomack shall be on the last 
Monday in each month ; of Albemarle, 
on the first Monday ; of Amelia, on the 
first Monday : of Amherst, on the third 
Monday ; of Augusta, on the fourth 
Monday ; of Bath, on the second Tues- 
day," &c, &c. Among the days desig- 
nated were the following : Brooke, last 
Monday; Greenville, Wednesday after 
second Monday ; Hampshire, Monday 
next after second Tuesday ; Patrick, first 
Thursday after second Monday ; Rock- 
bridge, Shenandoah, and Frederick, 
each, Monday after first Tuesday ; Win- 
chester, Friday before first Monday. 
Most of the days of the month were 
court days in some of the counties of the 
state. The Lord's day and Saturday 
were exempted from designation ; as 
was also the hangman's, except at the 
borough of Winchester. In many, if not 
most, of the congressional districts 
there was a different court day, and, 
therefore, a different congressional elec- 
tion day for each county of the district. 



244 



days in all of the one hundred counties and eight corporations of 
the state. Notwithstanding this act was, as to representatives in 
congress, absolutely silent, upon its passage the days for holding 
congressional elections were, by operation of the previous act of 
1813, changed in many of the counties of the state. Although 
the law, which fixed the congressional elections on the court days 
remained in force fort}^ years, the court days themselves were 
subjected during that period to numerous changes. Most of the 
other states, instead of designating specifically and absolutely the 
days for the congressional election, indicated the event or occa- 
sion, leaving the occurrence of the event or occasion to be other- 
wise regulated. 1 



1 By the statute of Maryland, regulat- 
ing congressional elections, the election 
officers were " authorized, enjoined, and 
required to attend, conduct, and regu- 
late the elections herein directed, to be 
held for the purposes aforesaid, in like 
manner and within the same space of 
time, as is by the constitution of this 
state directed for holding the said gen- 
eral election of delegates." Laws of Md. 
1799, p. 227. 

This was the law of New Hampshire : 
" That the inhabitants of the several 
towns, parishes, plantations, and places 
in this state, qualified to vote in the 
choice of senators for the state legisla- 
ture, shall assemble in their respective 
towns, parishes, plantations, or places, 
on the last Monday of August next, and 
on such other days as shall be directed 
in precepts for that purpose, to be here- 
after, with the advice of the council, 
issued by the supreme executive magis- 
trate of this state, so often and where - 
ever, by the constitution and laws of 
the United States, it may become neces- 
sary to elect by ballot such number of 
persons duly qualified, as this state may 
be entitled to for the representatives in 
the congress of the United States." 
Passed June 21, 1792. Const, and Laws 
N. H. 1805, p. 37. 

The statute of Kentucky, passed De- 
cember 13, 1802, is in the following 



words, viz: "The next succeeding elec- 
tion shall be held for representatives to 
congress at the general election in this 
state, in the year 1804, and every second 
year forever thereafter. " Ky.Laws, 1802, 
p. 83. 

The Louisiana statute of 1812 is in 
these words : " All subsequent elections 
for a representative, or representatives, 
from this state to the congress of the 
United States, shall be holden on the 
days appointed by law for the election 
of representatives to the general assembly 
of this state." La. Dig. 1841, vol. 1, p. 
145. This statute also, instead of desig- 
nating a particular day for the congres- 
sional election, associates it with another 
event, the occurrence of that other event 
being left subject to unlimited subse- 
quent change. 

Similar in character was the Georgia 
statute of February 11, 1799, which pro- 
vided — "That at the general election 
which shall be held for members of the 
general assembly on the first Monday in 
October, 1800, and at every second gen- 
eral election thereafter, the electors at 
such election shall vote for members to 
represent this state, in the house of 
representatives of the United States." 
Prince's Dig. Laws Ga. p. 191. 

The statute of New Jersey, enacted 
December 2, 1807, is peculiar. It is al- 
ternative in its provisions. It provides 



245 

§ 290. The question whether the time for choosing senators and 
representatives in congress can be prescribed in a state constitu- 
tion, or the accompanying ordinance, or schedule, is not yet sat- 
isfactorily settled by authority. The original constitution of the 
state of Oregon was ratified on the ninth day of November, 1857. 
It contains a provision that " general elections shall be held on 
the first Monday of June biennially," and, among the officers to 
be chosen at the general elections, specifies representatives in the 
congress of the United States. In the schedule it was provided 
as follows : " If this constitution shall be ratified, an election 
shall be held on the first Monday in June, 1858, for the election 
of members of the legislative assembly, a representative in con- 
gress, and state and county officers ; and the legislative assembly 
shall convene, at the capital, on the first Monday in July, 1858, 
and proceed to elect two senators in congress, and make such 
further provisions as may be necessary to the complete organiza- 
tion of a state government." The constitution having been ratified, 
as already stated, in November, 1857, an election was held, in 
pursuance of the provisions of the schedule, on the first Monday 
of June, 1858, at which a representative in congress was chosen, 
and also a legislative assembly, which met at the capital, on the 
first Monday in July, 1858, and chose two senators of the United 
States. The state was admitted into the union on the fourteenth 
day of February, 1859, and the representatives and senators elect 
were then admitted to their seats. The term of the thirty-fifth 
congress expired March 4, 1859. The schedule contained a 

that representatives in congress " shall States, unless altered by congress, shall 

be elected at the same time with the be held at such time in October, in the 

members of the state legislature, sheriffs, year 1792, and every second year after, 

and coroners, except when electors of and at such places as elections of the 

president and vice-president are to be members of the general assembly are 

chosen, as hereinafter directed. And in then held in the respective counties of 

every fourth year, when electors are to this state." Laws of Del. 1797, vol. 2, 

be chosen, the representatives in congress p. 986. 

shall be elected at the same time with The South Carolina law of 1792 is in 

said electors." Laws N. J. 1703-1820, these words : 

vol. 1, p. 536. u And after the day last aforesaid the 

The Delaware statute of October 26, elections shall always be held at the 

1790, provides: "That an election for same times and places, and regulated 

the choice of a representative or repre- an <* .conducted by the same managers 

r r and in the same manner as the elections 

sentatives, as the case may be, for this of members of the state legislature." 

state in the congress of the United Brevard's Dig. vol 1, p. 285. 

I 



246 

provision that all laws, in force in the territory of Oregon when 
the constitution took effect, and consistent therewith, should con- 
tinue in force until altered, or repealed. An act of the territorial 
legislature, passed in 1845, contains the following provision : "A 
general election shall be held, in the several election precincts, in 
this territory, on the first Monday of June, in each year, at 
which there shall be chosen so many of the following offices as are 
by law to be elected in each year ; that is to say, a delegate to 
congress, members of the territorial council and house of repre- 
sentatives, judge of probate, district attorneys," and others. 

On the first day of June, 1859, a law was enacted, by the legis- 
lature of the state of Oregon, providing for the election of a 
representative in congress, on the twenty-seventh day of June, 

1859. The representative chosen, at that election, served through 
the term of the thirty-sixth congress. An election of representative 
in the thirty-seventh congress was held on the first Monday in June, 

1860, and another on the sixth day of November, 1860, the day of 
the presidential election. Different persons were chosen at these 
elections. The case of the claimant chosen in June was based upon 
the constitutional provision already cited. The other claimant 
insisted that his election on the day of the presidential election was 
valid, because the people were entitled to representation in con- 
gress, and no provision had been made for an election by the state 
legislature. The committee of elections were of the opinion that 
the general election, provided for in the constitution, was designed 
to include a representative in congress, and that, inasmuch as the 
constitution provided for the first of those elections on the first 
Monday in June, 1858, the next was to be held in June, 1860, and 
that the constitution of the state had fixed, beyond the control of 
the legislature, the time for holding an election of representative 
in congress at the general election, to be held biennially on the 
first Monday in June. The house adopted the resolution reported 
by the committee without a division. 1 

^heil v. Thayer, 1 Bart. 349. vote in accordance with that opinion. I 

The following are extracts from the offer the following, as a substitute for 

,,,.,, , the resolutions reported by the commit- 

debate in the house : tee of elections . % soive ^ That neit her 

" Mr. Stevens. Mr. Speaker, I am not A. J. Thayer nor George K. Sheil is en- 
going to take part with either of these titled to a seat in this congress, as rep- 
gentlemen, the sitting member, or the resentative from Oregon, and that the 
contestant ; for I think that neither of seat be declared vacant, 
them has any business here ; and I shall " Now, sir, I will detain the house but 



24:7 



§ 291. In a case from the state of West Virginia, determined 
by the house of representatives of the forty-second congress, the 
question whether the power to prescribe the times for holding 
elections for representatives in congress, which is conferred by the 
constitution upon the state legislatures, could be exercised by a 
constitutional convention, was considered by the committee of 



a moment. I admit that the constitu- 
tion of a state, when it is framed, may 
fix the time for the first election because 
there is no other power to fix it, and 
that has been the practice ; but I main- 
tain that the constitution of a state can- 
not fix the day for any future election in 
congress. I understand one of these 
gentlemen to claim the seat by virtue of 
having been elected upon the day which 
he says was fixed by the constitution of 
Oregon, — not the first election under 
that constitution. The legislature had 
not acted ; and upon that ground he 
claims that the action of the constitu- 
tion was good. Sir, if the constitutional 
provision was good, it would prohibit 
the legislature from acting in the matter 
through all time to come. The legisla- 
ture would have their hands tied, and 
would not be able to fix the times and 
places of holding elections, in that state. 
But the constitution of the United States 
comes in and prevents any such action of 
the convention of that state ; for it ex- 
pressly provides who shall fix the times 
and places of holding elections for mem- 
bers of congress. Here is the language 
of the constitution : 

'"The times, places, and manner of 
holding elections for senators and rep- 
resentatives shall be prescribed, in each 
state, by the legislature thereof.' 

"Now, sir, I hold that no other power 
in a state has a right to prescribe it ; 
and, if the state legislature fails to fix 
the times and places, there is another 
provision of the constitution by which 
congress has a right to fix it ; and I wish 
they would fix it, and fix it uniform 
throughout the United States. But I 
deny that the convention to frame the 
constitution of a state can fix the times 
and places for electing members of con- 
gress, notwithstanding the provision of 
the constitution which I have read." 

"Mr. Dawes. Mr. Speaker, I under- 
stand that the ground upon which the 
amendment is offered is simply this : that, 
in the absence of legislation in Oregon 
by its legislature, the constitution of Or- 
egon having fixed the day upon which 
this election should take place, the 



house of representatives is to say that 
the people of Oregon, acting through 
their constitution — the highest and the 
organic law of the state—cannot fix the 
time and place for holding an election. 
If there were a conflict between the ac- 
tion of the legislature of Oregon and its 
constitution, there might be some ground 
for the position which is assumed by the 
gentleman from Pennsylvania. But the 
organic law, that which rises above and 
swallows up legislative action, having 
determined that this election should 
be held on a particular day and in a 
specific manner, and the legislature of 
Oregon having acquiesced in that, by 
passing no law in conflict with it, it is 
assumed, by the gentleman from Penn- 
sylvania, that it is proper for this house 
to say that the people of Oregon shall 
not, in that way and in that manner, de- 
clare how and when and where their 
representatives shall be elected. It oc- 
curs to me, sir, that that provision of 
the constitution of the United States, 
which says that the time and place shall 
be specified by the legislature of each 
state, meant simply that they should be 
fixed by the constituted authorities of the 
state, until congress itself should fix a 
time for the election, in all the states. 
As congress has not fixed the time, it has 
said to every state ' you may, by your 
constituted authorities, through whom 
you choose to speak in your law, fix the 
time.' Now the legislature of the state 
of Oregon has acquiesced, if nothing 
more, in the time fixed by the constitu- 
tion, the organic law of Oregon." 

" Mr. Stevens. The organic law of 
Oregon is not definite. It fixes the first 
election ; but not a word about any sub- 
sequent one." 

" Mr. Dawes. The organic law of the 
state says that all these genex-al elections 
shall be held on the first Monday of 
June, biennially, and specifies what offi- 
cers shall be elected on that day. Among 
them is a member of congress. If, there- 
fore, it was in the power of the state of 
Oregon to say when this election shall 
be held, it has so said, it seems to me, as 
plainly as it could say it." 



24:8 

elections. But, inasmuch as the prevailing party in that case 
insisted that the question was not legitimately presented by the 
case, and the house, by a very large majority, overruled the com- 
mittee, the decision cannot be regarded as a final determination 
of the question. 

The third article of the state constitution of 1863 contained 
the following clause : " The general election of state and county 
officers and of members of the legislature shall be held on the 
fourth Thursday of October." The third chapter of the code of 
1869 contained the following provisions : " The general elections 
for state, district, county, and township officers, and members of 
the legislature, shall be held on the fourth Thursday of October." 
"At the said elections, in every year, there shall be elected dele- 
gates to the legislature and one senator for every senatorial dis- 
trict, and, in the year 1870 and every second year thereafter, a 
governor, secretary of the state, treasurer, auditor, and attorney- 
general of the state, a prosecuting attorney, surveyor of lands, 
recorder, and the number of assessors prescribed by law, and a 
representative in the congress of the United States, for the term 
beginning on the fourth day of March next after the election, for 
every congressional district." The fourth article of the constitu- 
tion of 1872 contained the following section : " The general 
elections of state and county officers, and members of the legis- 
lature, shall be held on the second Tuesday of October, until 
otherwise provided by law." The schedule of the constitution of 
1872 contained the following provisions : " The officers, author- 
ized by existing laws to conduct general elections, shall cause 
elections to be held, at the several places of voting established by 
law, in each county, on the fourth Thursday of August, 1872, at 
which elections the votes of all persons qualified to vote, under 
the existing constitution, and offering to vote, shall be taken, upon 
the question of ratifying, or rejecting, this constitution and sched- 
ule." " On the same day, and under the superintendence of the 
officers who shall conduct the election for determining the ratifi- 
cation or rejection of the constitution and schedule, elections shall 
be held, at the several places of voting in each county, for senators 
and members of the house of delegates, and all officers, executive, 
judicial, county, or district, required, by this constitution, to be 
elected by the people." 



249 

An election of representatives in congress was held on the fourth 
Thursday of August, 1872, simultaneously with the election at 
which the new constitution and schedule were ratified, and another 
election, at which comparatively few votes were cast, was held on 
the fourth Thursday of October, 1872. The parties to the contest 
claimed the seat in controversy, under these respective elections. 
It was the opinion of the majority of the committee that the power 
to prescribe the times of holding the elections of representatives, 
conferred by the constitution upon the legislatures of the states, 
could not be exercised by conventions organized to amend state 
constitutions, and that the ratification of these constitutions and 
their schedules, by the votes of the people, could not validate 
such exercise of power. 

On the other hand it was conceded by the minority of the com- 
mittee, that the designation of the time for choosing representa- 
tives, in a schedule framed by a constitutional convention and 
ratified by the people, would be void, if the term " legislature," in 
the clause empowering the legislatures of the states to prescribe 
the times of holding the elections of representatives, were appli- 
cable only to the ordinary legislature, organized for the enactment 
of statutory law ; but it was, at the same time, insisted that how- 
ever restricted the scope of the term "legislature" might be, in 
other clauses of the constitution, it embraced, in the clause under 
consideration, not merely the ordinary legislature of two branches, 
organized for the enactment of statutory law, but also the extra- 
ordinary legislature, constituted for the enactment, or revision, of 
the fundamental law, subject to ratification or rejection by the 
people, and that, if it should be assumed that it was the purpose 
of those, who framed and ratified the federal constitution, to con- 
fer the power to prescribe the times, places, and manner of hold- 
ing elections of representatives in congress upon the ordinary 
state legislatures, chosen for the enactment of statutory law, it 
would, nevertheless, be true that this power was entrusted to those 
legislatures in their well known character and relations to the 
state constitutions ; that it was not the purpose to revolutionize 
their character, or their relations to the state constitutions, but, 
such a body as a state legislature not acting in subordination to 
the constitution of the state being unknown to those who framed 
and ratified the constitution of the United States, the purpose of 



250 

those who framed and ratified it must have been to leave this 
power to be exercised, like other powers, in subordination to the 
state constitution ; and further that the substantive object of those 
who framed and ratified the constitution was to deposit the power 
to regulate the times, places, and manner of choosing representa- 
tives in congress with the states, until congress should see fit to 
assume it, and the legislature was designated as the depository of 
this power because the power was in its nature a legislative power 
and, in a republican form of government, the state could properly 
exercise it only through its legislative officers ; but it was no part 
of their purpose to indicate the composition of the legislative 
body, which should exercise the power. 

In opposition to the opinion of the majority of the committee 
it was also insisted that it was competent for a constitutional con- 
vention, with the approval of the people, to prescribe, in the 
schedule, the time for the choice of representatives. But at the 
same time it was denied that, in the case under consideration, 
this power had been in fact exercised. It was asserted that the 
schedule, in effect, merely fixed the time of the general election for 
the year 1872, and the code of 1869 made the election of repre- 
sentatives in congress simultaneous with the general election. 1 

§ 292. It was provided, in the constitution of the state of Mich- 
igan, that no citizen, or inhabitant, should be entitled to vote at 
any election, unless he had resided in the township, or ward, in 
which he offered to vote, during the ten days next preceding 
the election. But it was provided, by an act of the state legisla- 
ture, passed February 5, 1864, that soldiers, who were qualified 
electors, might vote outside of the limits of the state. The decisive 
question was whether soldiers' votes, so cast, were valid under the 

1 Wilson v. Davis, Smith, 108. to regulate the times of choosing repre- 
By a decisive majority the house ad- sentatives. On the contrary the mere 
mitted the representatives chosen on the admission of representatives from states 
fourth Thursday of August, 1872. The already in the union to the house can- 
question is not so difficult in the cases not, of course, be tantamount to the ex- 
of representatives from new states, re- ercise of that power by congress. But 
ceived into the house of representatives then the etymological objection, that 
upon the original admission of the states the time is not pi'escribed, in the sense 
into the union. In those cases the ad- of the constitution, if of any validity, is 
mission of the states, by congress, may equally valid whether the election is, or 
be regarded as tantamount to an exer- is not, held at the original organization 
cise of the paramount power of congress of the state government. 



251 

constitution of the United States. It was held by the majority 
of the committee that there was a conflict between the state con- 
stitution and state law ; that the power of the state, in the premises, 
was derived wholly from that clause in the constitution of the 
United States, in which it is provided that the times, places, and 
manner of holding elections for senators and representatives shall 
be prescribed in each state by the legislature thereof ; that the 
word legislature, here used, meant not the legislative power of 
the state, which would include a convention authorized to prescribe 
fundamental law, but the ordinary legislature, known as such in 
the political history of the country ; that even if the word were 
used in the former sense, the statute in question would be valid, 
because, if the constitutional convention had power to legislate 
on the subject, the ordinary legislature also had the same power, 
which was derived, in each case, not from the people of the state, 
but from the constitution of the United States, and the statute, the 
enactment of which was its latest exercise, was of superior validity ; 
and, finally, that the provisions in question had nothing to do with 
the qualifications of electors. The minority were of the opinion 
that the object of the clause under consideration was to confer 
upon congress such power over the elections of senators and repre- 
sentatives as would secure the federal legislature against the 
consequences of the refusal of refractory states to make the neces- 
sary regulations on the subject, and to leave this power in the 
hands of the states until it should be exercised by congress ; that 
the use of the word legislature was not intended as a limitation 
upon the right of the people to restrict their legislatures, in the 
exercise of this power ; that the word legislature signified that 
body in which all the legislative power resided, whether it was the 
people, acting directly, or a constitutional convention representing 
the people ; that the ordinary legislature was the creation of the 
organic law, and the term, as used in the constitution, could only 
be applied to it as subordinate to the organic law to which it owed 
its existence ; that neither congress, nor the state legislature, could 
designate places for voting for representatives, outside of a district, 
or state ; and that the statute under consideration did not pre- 
scribe places for voting, but only purported to authorize soldiers 
to vote where they might be found or stationed. 1 

Baldwin v. Trowbridge, 2 Bart. 46. " It will be observed that the elector 

The committee reported as follows : is prohibited, by the constitution of the 



252 



§ 293. If it be assumed that a constitutional convention has 
power to prescribe the times for electing representatives in con- 



state (taking the interpretation of its 
supreme court as correct), from voting 
outside of the township, or ward, in 
which he resides, but, by the act of the 
legislature, is allowed, when absent in 
the military service of tne country, to 
vote even outside the state. Here is an 
unmistakable conflict of authority. The 
constitution plainly prohibits what the 
statute as plainly permits. The one 
authorizes the election to be held only 
in the township, or ward ; the other, at 
military headquarters. The power to 
act at all in the premises, so far as it 
concerns representatives in congress, is 
derived from article one, section four, 
of the constitution of the United States, 
which is as follows : ' The times, places, 
and manner of holding elections for sen- 
ators and representatives, shall be pre- 
scribed, in each state, by the legislature 
thereof ; but cougress may, at anj^time, 
by law, make, or alter, such regulations, 
except as to the place of choosing sena- 
tors.' Here the power is conferred upon 
the legislature. But what is meant by 
the ' legislature ?' Does it mean the leg- 
islative power of the state, which would 
include a convention authorized to pre- 
scribe fundamental law ; or does it mean 
the legislature, eo nomine, as known in 
the political history of the country? 
The committee have adopted the latter 
construction. At the time the constitu- 
tion of the United States was written 
there existed, in the thirteen states for 
which it was designed, legislatures cre- 
ated, or restrained, by some fundamental 
law, in the shape of charters, or consti- 
tutions, very much as they exist in the 
several states now. With this fact before 
them, is it not probable that the framers 
of the constitution, if they intended to 
confer this power upon state organic 
conventions, would have chosen some 
word less liable to misconstruction ? It 
is also apparent, from the manner in 
which this word is used in other parts of 
the instrument, that its framers recog- 
nized a wide difference between a con- 
tinuing legislature and a convention 
temporarily clothed with power to pre- 
scribe fundamental law. Article V pro- 
vides that congress ' shall call a conven- 
tion, for proposing amendments, * * on 
application of the legislatures of two- 
thirds of the several states ;' also that 
amendments shall be valid when ' ratified 
by the legislatures of three-fourths of the 



several states, or by conventions of three- 
fourths thereof, as the one, or the' other, 
mode of ratification may be proposed by 
the congress.' Article VII provides that 
the 'ratification of the conventions of nine 
states shall be sufficient for the estab- 
lishment of this constitution, between 
the states so ratifying the same.' The 
convention closed their labors with the 
following resolution : ' Resolved, That 
the preceding constitution be laid before 
the United States, in congress assembled ; 
and that it is the opinion of this conven- 
tion that it should afterward be submitted 
to a convention of delegates, chosen in 
each state by the people thereof, under 
the recommendation of its legislature.' 

" In these extracts the words ' legisla- 
ture ' and ' convention ' are both used to 
denote different legislative bodies, and 
in such contrast as to clearly indicate 
that the former is employed in its his- 
toric, rather than in its normal, sense. 
In article one, section two, the words of 
the constitution are : ' the electors in 
each state shall have the qualifications 
requisite for the most numerous branch 
of the state legislature.' Did anybody 
ever hear of a constitutional convention, 
in the history of this country, composed 
of two houses? Article one, section 
three, provides that ' the senate shall be 
composed of two senators from each 
state, chosen by the legislature thereof.' 
In article two, section one, it is said : 
' each state shall appoint, in such man- 
ner as the legislature thereof may direct, 
a number of electors,' and so forth. In 
section eight, of article one, ' the con- 
sent of the legislature of a state ' is re- 
quired before the United States can pur- 
chase places for forts, and so forth. Again, 
in article four, section four, it is said 
that ' the United States shall protect 
each state, on application of the legisla- 
ture, or the executive (when the legisla- 
ture cannot be convened), against domes- 
tic violence.' It will hardly be claimed 
that a constitutional convention could, 
perform the duties thus conferred upon 
the legislature ; much less that it could 
forbid the legislature, eo nomine, from 
discharging them, after its own dissolu- 
tion. 

" But the legislation of Michigan may 
be sustained, as against the constitution 
of that state, even if the word legislature 
is to be taken in its most enlarged sense. 
Whatever power the convention of that 



253 

gress, the question still remains whether it can prescribe the time 
in a schedule submitted, with the constitution, to the people, for 



state possessed, to prescribe the places 
of holding elections for representatives 
in congress, was derived, not, like its 
other powers, from the people, but from 
the constitution of the United States, 
and that, too, because it was a construct- 
ive legislature. The power conferred is 
a continuing power. It is not used up 
when once exercised, but survives the 
dissolution of the convention. The words 
of the constitution are as potent then as 
before ; and, if there is any legislative 
body in the state that can properly be 
called a legislature, they appertain to it 
as strongly as to any prior legislative 
body. They do not authorize any con- 
vention, or legislature, to tie the hands 
of its. successors. The people authorize 
a convention to do that when they (the 
people) have power ; but certainly the 
people of Michigan had no power to en- 
large, or restrict, the language of the 
constitution of the U,nited States. This 
view of the case entirely harmonizes 
what was, at first, supposed to be a par- 
tially adverse precedent, in the case of 
Shiel v. Thayer from the state of Ore- 
gon." 

The minority dissented from the report 
as follows : 

"But it is argued that this power 
was, by express terms, left, not to the' 
states simply, but to the legislatures 
thereof, and that this is such a limi- 
tation, upon the people of the states, 
that they have no power to restrict their 
legislatures, in the exercise of this right 
conferred upon them by the federal con- 
stitution ; but I submit, with all due re- 
spect, that, not only the history and ob- 
ject of the section under consideration, 
but the proper definition of the term 
'legislature,' as therein used, show the 
fallacy of this construction. 

"The ' legislature ' of a state, in its 
fullest and broadest sense, signifies that 
body in which all the legislative powers 
of a state reside ; and that body is the 
people themselves who exercise the elec- 
tive franchise ; aud upon their power of 
legislation there is no limitation, or re- 
striction, except such as may be found 
in the federal constitution, or such as 
they may themselves provide, by the 
organic law of the state. When they 
assemble, in convention, which, in large 
communities, is from necessity done by 



the agency of delegates, or representa- 
tives, of the people, the whole legislative 
power of the state is then vested in such 
convention. It can abolish, or in whole, 
or in part, abrogate the proceedings of 
'the general assembly,' or 'legislative 
council,' or ' general court, 'or whatever 
may be the designation of that subordi- 
nate body in which is usually lodged a 
portion, or residuum, of the legislative 
power of a state. Indeed the people of 
a state might provide for the periodical 
assembling of their convention, which 
would exercise and perform all legisla- 
tive powers and duties, without the in- 
tervention of that body of limited and 
restricted powers properly called a legis- 
lature, but which, in the constitution of 
most of the states, is called by some 
other name. It is variously designated 
a ' general assembly,' a ' legislative coun- 
cil,' a ' general court,' and the like, and 
is nowhere understood to hold in its 
grasp all the legislative powers of the 
state. 

' ' In Missouri, during the late rebel- 
lion, the state convention continued its 
existence for years, performing all the 
ordinary acts of legislation ; and its 
power to do so is not questioned. That 
that was a legislature, within the sense 
of the term as it is used in this clause of 
the federal constitution, will hardly be 
controverted ; and indeed every state 
convention, called by the people to de- 
termine the form of government, or the 
powers and duties of the various officers 
thereby created, is a legislature, and 
performs many of the ordinary acts of 
legislation. Indeed it is the legislature 
par excellence of the state ; and that 
other body created by it, whether called 
a ' general assembly,' ' general court,' or 
otherwise, is the creation of this para- 
mount legislature, and is liable to be 
modified or annihilated whenever this 
' legislature '— the convention of a state 
— shall again assemble. This secondary, 
or subordinate, body is the creature of 
the organic law of the state, owes its 
existence to it, and can rightly do 
nothing in contravention to its pro- 
visions. 

"If, then, this section of the federal 
constitution can be construed to refer 
to this secondary, or subordinate, legis- 
lative body of a state, it must be held to 
mean that the time, place, and manner 



254 

ratification, or rejection, at the time of choosing the officers. This 
question was involved in the cases from the state of West Yirginia, 



of holding elections for representatives, 
shall be prescribed, in each state, by the 
legislature thereof, such legislature act- 
ing in subordination and in conformity 
to that organic law to which it owes its 
existence. If the state constitution has 
fixed no limitation, the power of the 
legislature is ample and complete. But 
if the constitution has fixed limits, this 
legislature cannot transcend them, but 
must act within the limits prescribed ; 
and if it goes beyond them, its action 
is, to that extent, absolutely void. 

' ' Indeed from the adoption of the 
federal constitution until this time it was 
never before contended, so far as I am 
informed, that the clause in question 
conferred upon that body in a state, in 
which was reposed that residuum of leg- 
islative power not exercised by the state 
convention, power to act utterly inde- 
pendent of, and in utter disregard of, 
the state constitution, by virtue of which 
alone it has any existence. The people 
have everywhere supposed that they had 
the power to fix a limitation upon the 
action of their legislature, in determining 
the times, places, and manner of hold- 
ing elections for all offices. They have 
exercised this power in most of the states, 
by fixing limitations in their state con- 
stitutions, and in every instance, I be- 
lieve, where a conflict has been found to 
exist, in this respect, between the state 
constitution and an act of their legisla- 
ture, the constitution has by courts and 
legislative bodies been sustained, and 
the acts of the legislature, to that extent, 
held to be null and void. And this 
house is now for the first time called 
upon to decide that, in this respect, a 
state legislature may override and ut- 
terly disregard the provisions of the very 
constitution that brings it into being. I 
admit that if there was an irreconcilable 
antagonism between the federal and state 
constitutions, in such case, there would 
be ground for the position taken by the 
majority of the committee. But no such 
antagonism exists. I therefore call upon 
the house to pause long before they es- 
tablish a precedent that will operate as 
an invitation to the state legislatures to 
disregard those wholesome limitations 
which the people have attempted to place 
around the actions of their own servants. 
This long and undisturbed construction 
of their power to fix these limitations 



upon the actions of their servants, placed 
upon the constitution by the people 
themselves, and by all departments of 
the government, ought not, at this late 
day, to be disturbed unless it is rendered 
absolutely necessary by the very terms 
of the constitution itself." 

The report of the majority was sus- 
tained by a vote of 108 to 30. 
Chancellor Kent says : 

"There were difficulties, some years 
ago, as to the true construction of the 
constitution, in the choice of senators. 
They were to be chosen by the legisla- 
ture, and the legislature was to prescribe 
the times, places, and manner of holding 
elections for senators, and congress is 
authorized to make and alter such reg- 
ulations, except as to the place. As the 
legislature may prescribe the manner, it 
has been considered and settled, in New 
York, that the legislature may prescribe 
that they shall be chosen by joint vote, 
or ballot, of the two houses, in case the 
two houses cannot separately concur in 
a choice, and then the weight of the 
senate is dissipated and lost in the more 
numerous vote of the assembly. This 
construction has become too convenient, 
and has been too long settled, by the 
recognition of senators so elected, to be 
now disturbed ; though I should think, 
if the question were a new one, that 
when the constitution directed that the 
senators should be chosen by the legisla- 
ture, it meant not the members of the 
legislature per capita, but the legislature, 
in the true technical sense, being the 
two houses, acting in their separate and 
organized capacities, with the ordinary 
constitutional right of negative on each 
other's proceedings." 1 Kent Comm. 
225. 

The opponents of the doctrine that the 
state legislature designated in that clause 
of the constitution in which it is pro- 
vided that, "the times, places, and 
manner of holding elections for sena- 
tors and representatives, shall be pre- 
scribed, in each state, by the legislature 
thereof," consists necessarily of two 
houses, base their opinion mainly on the 
following grounds. Congress, they say, 
has declared, in the act regulating the 



255 



which were determined by the house of representatives in the 
forty-second congress. The majority of the committee, influenced, 



election of United States senators, that, 
"if either person has not received a 
majority of the votes, in each house, or 
if either house has failed to take pro- 
ceedings as required by this section, the 
joint assembly shall then proceed to 
choose, by viva voce vote of each mem- 
ber present, a person for senator, and 
the person who receives a majority of 
all the votes of the joint assembly, a 
majority of all the members elected to 
both houses being present and voting, 
shall be declared duly elected." In the 
event of a failure of the two houses of 
the legislature acting separately to elect 
senators, this act makes a single house 
or joint assembly, containing a majority 
of the members, not of each house, but 
of both houses, a legislature competent 
to elect senators. If the body, so consti- 
tuted, is not the state legislature, in the 
sense of the constitution, this act of con- 
gress, like the corresponding practice of 
the states, is unconstitutional. If, on 
the other hand, the body, so constituted, 
is the state legislature, then the state 
legislature may, within the meaning of 
the constitution, consist of either one or 
two houses. An examination of the history 
of the clause which confers the power to 
regulate the times, places, and manner 
of holding elections for senators and 
representatives (Story Const, s.s. 814-828) 
shows, they say, that the great question, 
in the convention and before the people, 
was whether this power should be exer- 
cised by the several states or by the 
nation. There was no question as to 
the manner in which the states should 
exercise the power, if conceded to them. 
The controversy was finally closed by 
giving to the clause its present form. 
The act provided for is in its nature a 
legislative act, and it was natural that, 
the power to perform it, if conferred 
upon the state at all, should be lodged 
in the legislative, rather than the execu- 



tive, or judicial, department of the state 
government. Hence the word " legis- 
lature " was employed. The legislature 
is the body which makes the laws ; which 
exercises the legislative power of the state . 
Every one of the original thirteen states 
had the right, before the adoption of 
the constitution, and every state in the 
union now has the right, to determine 
what body or bodies shall exercise its 
legislative powers. No obligation rests 
on any state to divide its legislature into 
two houses. No such obligation is im- 
posed by the federal constitution, or by 
any other authority. Whether its legisla- 
ture shall consist of one or two or three 
houses, it is for the state itself, and for 
the state alone, to decide. Whether its 
legislature shall be guided by a chart 
called a constitution, and shall legislate 
subject to that constitution, or, without 
any state constitution, and subject only to 
the constitution, laws, and treaties of the 
United States, shall exercise, itself, at 
all times, the entire legislative power 
of the state, is a question with which no 
authority except the state itself has any 
right to meddle. 

If the state decide that the people 
shall themselves, in the form of a simple 
democracy, constitute the legislature, 
and exercise directly all their legislative 
powers, there is nothing in the constitu- 
tion of the United States to prevent it. 
The constitution of the United States 
does not even require a state to adopt or 
maintain a written constitution. There 
is nothing in the provision for the ad- 
mission of new states, or in the provision 
relating to the guaranty of a republican 
form of government, or in any other 
provision of the constitution of the United 
States, which restricts, or was intended 
to restrict, the right of the people of 
each state to decide for themselves 
whether their government shall be a 
pure or a representative democracy ; 



256 



apparently to a great extent, by etymological considerations, 
concluded that the term " prescribed " showed the constitutional 
requirement to be that the time for the election of representatives 
in congress should be absolutely fixed beforehand, and could not 
be fixed in a schedule which would, itself, become valid only upon 
its ratification, by the people, at the same election at which the 
representatives were to be chosen. In opposition to this opinion 
it was asserted that the etymology of the word " prescribe " was 
not in the minds either of the framers of the schedule, or of those 
who adopted it; that the term "prescribe," as used in the con- 
stitution, was equivalent to the term fix or to the term designate ; 
and that the designation was sufficient if it became absolute at the 
close of the election, through the ratification of the people. The 
house sustained the views of the minority by a decisive vote. But 
then the constitutional provision, which relates to the choice of 
senators and representatives, requires the same interpretation, so 
far as this point is concerned, whether the power conferred be 
exercised by the state legislature or by congress. If the regulation 



whether the people themselves, or their 
representatives, shall exercise the legis- 
lative powers of the state ; whether if 
they entrust the legislative powers to 
representatives, the same representatives 
shall ordinarily and regularly exercise 
the whole mass of legislative power, 
without a state constitution for their 
chart, or shall be restrained or guided 
by such a constitution ; whether such 
representatives shall constitute one or 
several houses. 

It is true that the constitution ordains 
that "the electors, in each state, shall 
have the qualifications requisite for elect- 
ors of the most numerous branch of the 
state legislature." But nothing could 
have been further from the purpose of 
the framers of the constitution than, by 
this phrase, to prescribe 'the composition 
or form of the state legislature. The 
only requirement in the case is, that the 
electors of the most numerous branch 
shall be the electors of representatives. 
To satisfy this requirement, it is quite 
immaterial whether there are two or ten 



branches, or only one. Certainly it 
would be as easy to determine the most 
numerous of ten as to determine the 
most numerous of five branches. So that, 
if this clause shows that there should be 
two branches, it shows just as well that 
there should be ten. And if there be 
only one, there will, of course, be none 
more numerous than that. 

When a constitutional convention has 
been regularly and duly called and 
organized, with power to frame an entire 
new constitution, whether it be, or be 
not, the first constitution of the state, 
and the new constitution has been duly 
and regularly ratified by the people, and 
the new government under it duly or- 
ganized, in that case there has been the 
most complete and simple exercise of 
the legislative powers, and the most 
complete and perfect legislature possible 
under the constitution of the United 
States. It is quite immaterial whether 
it consisted of one, or two, or three, 
branches. 



257 



of the congressional election, by the state legislature, must be ab- 
solutely consummated, in advance, the same is true of its regula- 
tion by congress. If the regulation of this election, by congress, 
may be effectuated simultaneously with, or subsequently to, the 
occurrence of the election, so also may its regulation by the state 
legislature. If the important constitutional question then pre- 
sented were an open question, it might, like many other questions 
which have sprung out of the practical working of our government, 
involve considerable difficulty. But the power of congress to fix 
the time of holding congressional elections, by retroactive legis- 
lation, has been many times affirmed, on the admission of new 
states to 'the federal union. 1 



1 The state of Michigan was admitted, 
without an enabling act. The state con- 
stitution was adopted on the twenty- 
fourth day of June, 1835. The sixth 
section of the schedule contained the 
following provision : 

" The first election of governor, lieu- 
tenant-governor, members of the state 
legislature, and a representative in the 
congress of the United States, shall be 
held on the first Monday of October 
next and on the succeeding day." 

The representative was elected at the 
time so designated. On the fifteenth 
day of June, 1836, an act of congress 
was approved, by the president, provid- 
ing for the admission of the state of 
Michigan to the union, upon her assent 
to certain conditions as to boundaries. 
The third section of the act contains 
these words : 

" And the senators and representa- 
tives, who have been elected by the said 
state, as its representatives in the con- 
gress of the United States, shall be en- 
titled to take their seats in the senate and 
house of representatives, without further 
delay." 

Upon the assent of the state to the 
conditions prescribed, a final act of ad- 
mission was passed on the twenty-sixth 
day of January, 1837 ; and on the same 
day the representative, who had been 
chosen on the first Monday and succeed- 
ing day in October, 1835, took his seat 

17 



in congress, as did also the senators 
who had been chosen on the tenth day 
of November, 1835, more than a year 
before Michigan became a state, and 
more than a year before the regulation 
by the state legislature, of the time, 
place, and manner of their election was 
possible, under the constitution. Not 
only were these regulations not consum- 
mated in advance, in the etymological 
sense of the word " prescribe," but they 
did not become valid sirmlltaneously 
with the close of the election — did not 
become valid for more than a year after 
the election was held. Furthermore the 
ordinary state legislature had no part in 
prescribing the time, place, or manner 
of these elections. They were prescribed 
in the proposed state constitution, and 
not elsewhere. The people of Michigan 
were uncertain, not only before the elec- 
tion, but for more than a year afterwards, 
whether the schedule prescribing the 
time, place, and manner of the election 
would ever become valid, by the admis- 
sion of the state, with the constitution 
presented. And, while it is true that, 
upon the admission of the state, in 1837, 
the constitution and schedule and the 
election held in 1835 became valid, and 
the senators and representative became 
entitled to their seats, yet it cannot be 
said that the time, place, or manner of 
choosing these officers, had been liter- 



258 



§ 294. To launch a new constitution certain machinery and 
arrangements are always necessary, which, having subserved this 
single purpose, are of no further use. These might, of course, be 
provided in the constitution itself. But to incorporate temporary 
provisions into the body of a permanent constitution, would be to 
encumber the instrument with matter, which might more properly 
be excluded from the text of the constitution, and placed in such 
a form as to be dropped, when all the uses for which it was pro- 
vided have been fully subserved. Accordingly these provisions 
for inaugurating new state constitutions usually take the form of 
detached ordinances, or schedules. The validity and effect of 
these provisions are precisely the same whether they are placed 
in the ordinance, or schedule, to be thrown aside when no longer 
needed, or imbedded in the text of the constitution, to remain a 
permanent blemish, after the accomplishment of all the purposes 
for which they were required. It is clearly competent for a 
constitutional convention, by an ordinance, or schedule, to change 



ally ''prescribed," or fixed in advance, 
by the valid action of any competent 
authority. Certainly if congress could 
only prescribe the time of choosing rep- 
resentatives by fixing that time in ad- 
vance of the election, it could not do 
this by fixing the time a year after the 
election. The truth is that the vote of 
congress, admitting the new state to the 
union, does not, itself, operate, either 
antecedently, or retroactively, as a regu- 
lation of the congressional election ; but 
it operates to secure a corporate exist- 
ence to the state, and, thereupon, the 
regulations previously made by the state 
in embryo, became ab initio valid. 

The original constitution of the state 
of California was, without any enabling 
act, framed on the thirteenth day of 
October, 1849. It was ratified on the 
thirteenth day of November, 1849. The 
eighth section of the schedule contained 
these words : 

"At the general election aforesaid, 
namely, the thirteenth day of November 
next, there shall be elected a governor, 
lieutenant-governor, members of the 
legislature, and also two members of 
congress." 



On the ninth day of September, 1850, 
the state was admitted and the repre- 
sentatives took their seats. 

The constitution of Iowa was com- 
pleted on the eighteenth day of May, 
1846, and ratified on the third day of 
August, 1846. The sixth section of the 
schedule contains the following pro- 
vision : 

" The first general election, under this 
constitution, shall be held at such time 
as the governor of the territory, by proc- 
lamation, may appoint, within three 
months after its adoption, for the elec- 
tion of a governor, two representatives 
in the congress of the United States 
(unless congress shall provide for the 
election of one representative), members 
of the general assembly, and one auditor, 
treasurer, and secretary of state." 

Representatives were chosen, under 
the governor's proclamation, on the 
twenty-sixth day of October, 1846. On 
the twenty-eighth day of December, 
1846, the state was admitted to the 
union. This has been the common prac- 
tice, in the admission of new states, and 
in the restoration of insurrectionary 
states. 



259 

the time for holding the general election of the state. The pro- 
visions of the old constitution, prescribing the day for that elec- 
tion, are binding on all officers of the legislative, executive, and 
judicial departments of the state government, and on the people. 
But its provisions are powerless to determine the form, or sub- 
stance, of any provision of a new constitution, ordinance, or 
schedule. The people of the state, in their constitutional con- 
ventions, are always their own masters. There is nothing to re- 
strain them from giving whatever form they prefer to its organic 
law, .except the constitution of the United States and treaties 
made and laws enacted by the United States in pursuance thereof. 

Parties to contests in the house have contended that inasmuch as 
the ordinance, or schedule, is not ratified by the people, until the 
close of the election held for its ratification, or rejection, until then, 
having no validity itself, it can impart none to the general election, 
which is held at the same time ; so that the holding of the general 
election, on a day different from that prescribed in the old con- 
stitution, not being authorized by the new constitution, before its 
final consummation, is a violation of the old constitution and a 
nullity. 

But the answer to this has been in substance as follows. The 
general election, fixed by the old constitution, is the election of 
officers under the old constitution. That provided for in the 
ordinance, or schedule, is the election of the new officers, under 
the new constitution. If election proceedings, under the new 
constitution and ordinance, or schedule, which take place before 
their ratification is actually consummated, can have no validity, 
it is difficult to see how a new constitution can ever be ratified. 
If the ratification is to be effected by an election, the election must 
of course either precede, or be simultaneous with, the ratification. 
The ratification of the constitution and accompanying ordinance, 
or schedule, ipso facto, validates the election of officers held at 
the same time, as also the action of the convention prescribing the 
time of the election. There is in all this no conflict with the old 
constitution. But then, even if the old constitution actually con- 
tained a clause expressly forbidding the holding of an election of 
officers, under a new constitution, on the day of the election held 
for the ratification or rejection of the new constitution, such a 
clause would be powerless to fetter a constitutional convention, 



260 

which could submit to the people a provision for the abrogation 
of such a clause, as well as for the abrogation or modification of 
any other clause. 

So an express provision, in the old constitution, that acts and 
ordinances of a subsequent constitutional convention shall have 
no validity, until ratified, and, in no event, shall have any retro- 
spective operation or effect, is powerless to invalidate the ratifica- 
tion of a new constitution, or of an ordinance, or schedule, 
connected therewith, or the election of officers, under the new 
constitution, at a general election thereby fixed on a day different 
from that prescribed for the general election in the old constitution. 

§ 295. It is not competent for a constitutional convention to 
regulate the time, place, and manner of choosing either federal, or 
state, officers, by ordinances to take effect before the day on which 
the amended constitution is submitted to the people. The con- 
stitutional convention of Pennsylvania, by an ordinance, which was 
to become operative before the submission to the people of the 
proposed amendment to the constitution, attempted to set aside 
the regular election officers and election system, and to substitute 
others therefor, in the city of Philadelphia. Upon application 
for an injunction, the judges of the supreme court of Pennsylvania 
restrained the new officers from the exercise of the functions con- 
ferred by the ordinance. 1 

§ 296. A convention, assembled at Wheeling, in the state of 
Virginia, on the eleventh day of June, 1861, adopted an ordinance, 
which provided for the reorganization of the state government 
and the election of a legislature, and, subsequently, appointed a 
governor for the state. After the legislature had organized and 
enacted many statutes, had elected two senators, who were admitted 
to the senate of the United States, and had assumed all the func- 
tions vested in the legislature, by the pre-existing constitution, the 
convention, being still in session, by an ordinance which was not 
a part of the constitution and was never submitted to a vote of 
the people, provided for the election of representatives in congress, 
in certain cases, and under such provision the claimant was elected. 
It was held by the committee that the act of prescribing the regu- 
lations for elections of representatives was a legislative act ; that, 
while the designation of the time of the election, in the constitu- 

1 Wells v. Bain, 75 Penn. St. 39. 



261 

tion of the state, recognized and acquiesced in by the legislature, 
would be a legislative act, yet a designation of the time, not in 
the organized law, nor in an act of the legislature, but in an ordi- 
nance adopted by the convention in the presence of the legislature, 
was not a legislative act and was invalid. 1 

§ 297. The second section of the act for the apportionment of 
representatives among the several states, according to the sixth 
census, contained the following provision : " That, in each case, 
where a state is entitled to more than one representative, the 
number to which each state shall be entitled, under this apportion- 
ment, shall be elected by districts, composed of contiguous terri- 
tory, equal, in number, to the number of representatives to which 
said state shall be entitled — no one district electing more than one 
representative." It was held, by the committee of elections of the 
house of representatives, that, inasmuch as this section did not 
district the states, nor fix the time, place, or manner of holding 
the election, nor make such new regulations, or such alterations 
of old ones, as would enable the people to elect representatives, 
it was nugatory and inoperative, without state legislation ; that it 
could have no validity, as a command to the state legislatures to 
enact laws in accordance with its provisions, for the right to alter 
state laws, or to abrogate them by conflicting laws, did not imply 
a right to compel the state legislatures themselves to make such 
alterations, or new enactments, and the constitution contained no 
grant of power to congress, to superintend, control, and direct the 
legislation of the states ; that, if congress had the power to declare 
that representatives should all be elected by districts, without 
specifying the districts, it had also the power to declare that they 
should all be elected on the same day, without fixing the day, so 
that, if all the states should fail to fix the same day, the elections 
would be void ; that, while congress might exercise the power to 
regulate the time of the election, leaving the other two branches 
of the power to the states, and, in like manner, might exercise any 
other one of the three branches of this power, separately, or in 
conjunction with the others, yet, whenever it assumed the power 
over one branch of the subject, it was necessary that its legislation 
should be complete to such an extent that it would execute itself, 
without state legislation ; that the second section of the apportion- 

1 Beach's case, 1 Bart. 391 ; Segar's case, 1 Bart. 426. 



262 

ment act of 1842 was not a law made in pursuance of the consti- 
tution, valid, operative, and binding upon the states ; and that the 
representatives from New Hampshire, Georgia, Mississippi, and 
Missouri, were elected in conformity with the constitution and 
laws. 1 

§ 298. The regular election of representatives of the state of 
Louisiana, in the thirty-seventh congress, was not held on the first 
Monday of November, 1861, as the statute required, because, at 
that time, the state was overrun by rebel armies, and the governor, 
who had become a rebel, failed to cause the election of repre- 
sentatives to be held according to law. On the 14th of November, 
1862, an election was held in two of the districts, by order of the 
military governor, who was a subordinate of the commander of 
the Department of the Gulf. It was decided by the committee 
that, inasmuch as the proceedings were in all other respects regular, 
the designation of the day by the military governor did not inval- 
idate the election. 2 

§ 299. The executive authority of a state, upon receipt of the 
resignation of a member of the house of representatives of the 
United States, may issue writs for a new election, without waiting 
to be informed by the house that a vacancy has occurred in the 
representation of the state. 3 The power to fix the day of an elec- 



1 Cases of the representatives from New nullity, because it was a clear, intelli- 

Hampshire, Georgia, Mississippi, and gible, and substantive alteration of the 

Missouri. 1. Bart. 47 ; Cong. Globe, vol. state laws, which congress had the right 

1, part 1, pp. 16, 278, 279, 281, 283, and to make, and it plainly informed the state 

part 2, p. 3. While the report of the legislatures what they were to do to give 

committee was not formally adopted, by it practical effect ; that the state legis- 

the house, the right of the sitting mem- latures were commanded, not by the act 

bers to their seats was confirmed by a itself, but by the constitution of the 

vote of 127 to 57. The minority of the United States, to divide their states into 

committee concluded that the power of districts and to prescribe any other need- 

the state legislatures to regulate elections f ul regulations to give the law its effect : 

of representatives was derived wholly that the regulations for a general ticket 

from the federal constitution, and that, adopted in New Hampshire, Georgia, 

in the exercise of that power, they were Mississippi, and Missouri, being in op- 

the agents not of the states, but of the position to this law of congress, which 

United States ; that the provision in was a part of the supreme law of the 

question was not unconstitutional ; that land, was void, and that their represent- 

it was not void, as a partial execution of atives were not entitled to seats, 

the power of congress, because the con- 2 Cases of Hahn and Flanders, 1 Bart, 

stitution permitted congress to exercise 438. The house concurred by a vote of 

so much of the power, at any time, as it 92 to 44. 

might deem proper ; that it was not a 3 Mercer's case, C. & H. 41. 

• 



263 

tion to fill a vacancy in the house of representatives of the United 
States cannot be delegated by the governor. 1 Writs of election 
were issued by F. H. Peirpont, governor of Virginia, dated Wheel- 
ing, December 13, 1862, designating as the day of the election the 
31st day of December, 1862, or such other day as the county com- 
missioners should appoint. The commissioners of the only two 
counties in which an election was held changed the day to January 
15, 1863. It was held that it was not competent for the governor 
to delegate the power to fix the time of the election, and that the 
illegality could not be cured, by subsequent state legislation. 2 It 
has been held, by the committee of elections of the house of repre- 
sentatives, that although, by the second section of the first article 
of the constitution, it is made the duty of the executive authorities 
of the respective states to issue writs of election, to fill vacancies, 
yet, inasmuch as by the fourth section of the same article, it is 
made the duty of the legislature of each state to prescribe the 
times, places, and manner of holding such elections, the state legis- 
lature ought to appoint, as nearly as possible, the times, as well 
as places and manner, of holding elections to supply vacancies in 
congress. 3 

§ 300. Where Indians held an election at their own pueblo, 
appointed their own chiefs to conduct it, and made the returns to 
the secretary of the territory, disregarding the statute which made 
it the duty of the probate judge to select the place and appoint 
the judges, the votes were rejected. 4 

§ 301. The power to regulate the time, place, and manner of 
choosing state officers is vested in the legislatures of the several 
states, subject to the provisions of the state constitutions. But 
this power is to be so exercised as not to impair the substantive 
right of suffrage, conferred upon the electors by the constitution. 5 
If the legislature, in the exercise of authority conferred by the 
constitution, fix the time for holding an election of certain officers, 
an election held at a different time will be void. 6 The legisla- 

1 Grafnin's case, 1 Bart. 464 ; McKen- time fixed by the executive authority of 
zie's case, id. 460. the state, should be permitted to hold his 

2 McKenzie's case, id. 460. seat ; and the house assented. 
3 Hoge's case, C. & H. 135. But the 4 Lane v. Gal] egos, 1 Bart. 164. 

committee, in view of all the circum- 5 Page v. Allen, 58 Penn. St. 338. 

stances of the case, recommended that 6 State v. Dombaugh, 20 Ohio St. 167. 

the representative, although chosen at a 



264 

ture lias full power to determine the manner in which municipal 
officers shall be elected, or appointed, the mode of contest, and 
causes for which the election may be contested, and whether a 
jury trial shall or shall not be had. 1 Although the legislature 
cannot alter any regulations of the time, place, and manner of 
electing state officers, prescribed in the state constitution, unless 
authorized to do so by the constitution itself, yet, in the absence 
of full constitutional provision on the subject, it is competent for 
the legislature to prescribe such rules as shall secure the conven- 
ient exercise of the right of suffrage conferred by the constitution, 
without impairing the substance of the right, or altering the qual- 
ifications of electors prescribed in the constitution. 2 

§ 302. The statutes of South Carolina contained the following 
provisions : " An election shall be held on the second Monday and 
the day following in January next, and on the second Monday 
and the day following in January in every year thereafter, in such 
of the circuit court districts as there may then be vacancies, to be 
conducted in the same manner, by the same managers, and to be 
holden at the same places, as now are, or hereafter shall be, ap- 
pointed by law for the conducting, managing, and holding elections 
for members of the legislature, to elect sheriffs for the several cir- 
cuit court districts within this state, wherein any vacancy shall 
or may hereafter happen in the office of sheriff, occasioned either 
by death, removal out of the state, resignation from, or expiration 
of, office, or otherwise, of any person possessing the same;" 3 and 
" whenever any vacancy shall occur in the office of sheriff, in any 
of the circuit court districts in this state, by death, resignation, 
removal from the state, or removal from, or expiration of, office 
of any sheriff, or when any election shall be declared void by the 
managers, or when any two or more persons shall have an equal 
number of votes, it shall be the duty of the governor forthwith to 
issue writs of election to the managers appointed to hold elections 
for such district, requiring them to hold an election to fill such 
vacancy." 4 It was held that, under these two statutes, it was 
competent for the governor, upon the occurrence of a vacancy, to 
issue a writ for an election to be held upon the second Monday 

1 Moulton v. Beid, 54 Ala. 320. 3 Stat. S. C. vol. 5 (1808), p. 569, s. 1. 

2 Page v. Allen, 58 Perm. St. 338 ; Pat- 4 Id. vol. 6 (1822), p. 185, s. 2. 
terson v. Barlow, 60 id. 54. 



265 

of the succeeding month of January ; that, in case of failure by 
the governor to issue his writ for such an election, it was compe- 
tent for the electors to fill the vacancy, without the governor's 
writ, on the days designated by statute ; and that, in case of the 
failure of the electors so to fill the vacancy, it was competent for 
the governor afterwards to issue his writ for an election. 1 

§ 303. When the statute only permits the electors to vote for two 
of three officers to be chosen, ballots cast, in pursuance of its re- 
quirements, are not invalidated by its unconstitutionality. An un- 
constitutional denial of the right to vote for one of the three officers 
does not impair the right to vote for the other two. 3 Under a con- 
stitutional provision that " no private, or local, bill, which may 
be passed by the legislature, shall embrace more than one subject, 
and that shall be expressed in the title," 3 an act entitled, " an act 
to regulate elections," may properly provide for the preservation 
of the ballot boxes. 4 A constitutional provision that county 
officers, whose election, or appointment, is not provided for in the 
constitution, shall be chosen by the electors, or appointed by the 
board of supervisors of the county, as the legislature shall direct, 
includes superintendents of the poor; and the power conferred 
upon the legislature embraces the power to fill vacancies in that 
office. 5 

§ 304. Under a constitution declaring that "the legislative 
authority of this state shall be vested in a general assembly," 6 the 
grant is general, embracing the whole legislative power of the 
state, subject only to such special limitations as are defined in 
other parts of the instrument. The power to regulate elections is 
a legislative power, and, in the absence of constitutional inhibi- 
tions, it is competent for the legislature to authorize qualified 
voters, in the military service of the United States, to vote with- 
out the territorial limits of the state. 7 The constitution of Ver- 
mont contained the following provisions : "In order that the free- 
men of this state might enjoy the benefit of election as equally as 
may be, each town within the state that consists, or may consist, 
of eighty taxable inhabitants, within one septenary or seven years 

1 State v. Durant, Harp. 319. 5 People v. Comstock, 78 N. Y. 356. 

2 People v. Perry, 80 N. Y. 624. 6 Const. Ohio, 1851, art. 2, s. 1. 

3 Const. N. Y. art. 3, s. 16. 7 Lehman v. McBride, 15 Ohio St. 573. 

4 People v. Livingston, 79 N. Y. 279. 



266 

next after the establishing this constitution, may hold elections 
therein and choose each two representatives ; and each other in- 
habited town, in this state, may, in like manner, choose one 
representative, to represent them in the general assembly, during 
the septenary or seven years ; and after that each inhabited town 
may, in like manner, hold such election and choose one represent- 
ative forever thereafter." 1 " The freemen of each town shall, on 
the day of election for choosing representatives to attend the 
general assembly, bring in their votes for governor, with his name 
fairly written, to the constable, who shall seal them up and write 
on them ' votes for governor,' and deliver them to the representa- 
tive chosen to attend the general assembly. And, at the opening 
of the general assembly, there shall be a committee appointed, 
out of the assembly, who, after being duly sworn to the faithful 
discharge of their trust, shall proceed to receive, sort, and count 
the votes for the governor, and declare the person who has the 
major part of the votes to be the governor for the year ensuing. 
The lieutenant-governor and treasurer shall be chosen in the 
manner above directed." 2 It was the opinion of the judges of the 
supreme court of the state that so much of "an act providing for 
soldiers voting " as authorized votes to be cast for governor, lieu- 
tenant-governor, and treasurer, without the state, or at any place 
except in a freemen's meeting, holden in some town within the 
state, was unconstitutional, but that so much of the act as author- 
ized votes to be cast for electors of president and vice-president 
and representatives in congress, beyond the limits of the state, 
was not repugnant to any provision of the constitution of Vermont 
or of the constitution of the United States. 3 

§ 305. Under a constitution providing that " the powers of the 
government of the state of California shall be divided into three 
separate departments, the legislative, the executive and judicial ; 
and no person, charged with the exercise of powers properly 
belonging to one of these departments, shall exercise any functions 
appertaining to either of the others, except in the cases hereinafter 
expressly directed or permitted," 4 the legislature cannot confer 
upon a county judge the power to designate the place and manner 
of holding an election. The function exercised is ministerial and 

1 Const. Verm, part 2, s. 7. 3 Opinion of Judges, 37 Verm. 665. 

2 Id. s. 10. 4 Const. Cal. art. 3. 



267 

pertains to the executive department. An election held at the 
place and in the manner designated will be void. 1 

§ 306. The designation, in a state constitution, of the " annual 
town meeting," as the time for the election of justices of the peace, 
is equivalent to a prohibition against electing them at any other 
time ; and, while the legislature may fix the day for holding the 
town meetings, it cannot prohibit the election of justices of the 
peace at such meetings, or provide for their election at any other 
time, or place. When, in disregard of such a constitutional pro- 
hibition, an election of justices of the peace was held at the general 
election, which was not the " annual town meeting," no election of 
justices for that year having been held at the annual town meeting 
for the year, but, at the next annual town meeting, an election of 
justices was held, at which the relator received a majority of the 
votes, and the ballots and results were regularly returned, by the 
officers of election, to the town clerk, and the board of canvassers 
refused to canvass the precinct returns, or to make their certificate 
of the election, it was held that the election of justices of the peace, 
at the general election, was void ; that the election of such officers, 
at the next annual town meeting, was valid, and the relator was en- 
titled to demand a canvass and, upon refusal by the board to make 
it, was entitled to a mandamus to compel them to make it ; and 
that he lost no right by the adjournment of the board, without 
performing the duty. 2 

§ 307. A statute incorporating a city contained the following 
provisions : " All elections for county, state, and United States 
officers, who are voted for by the people, shall be held at meetings 
of the citizens qualified to vote in such elections, in their respective 
wards, at the time fixed by law for these elections respectively ; 
and at such meetings all the votes given for such officers re- 
spectively shall be assorted, counted, declared, and registered, in 
open ward meeting, by causing the names of all persons voted for, 
and the number of votes given for each, to be written in the ward 
records, in words at length. The ward clerk shall forthwith 
deliver to the city clerk a certified copy of the record of such 
elections. The city clerk shall forthwith record such returns ; 
and the mayor and aldermen shall, within two days after every 
such election, examine and compare all such returns, and make 

1 Dickey v. Hurlburt, 5 Cal. 343. 2 People v. Schiellein, 95 N. Y. 124. 



268 

out a certificate of the result of such elections, to be signed by the 
mayor and a majority of the aldermen, and also by the city clerk, 
which shall be transmitted and delivered, in the same manner as 
similar returns are by law directed to be made by selectmen of 
towns." 1 "For the purpose of organizing the system of govern- 
ment hereby established and putting the same into operation in 
the first instance, the selectmen of the town of Fall River, for the 
time being, shall, within thirty days after the acceptance of this 
act, issue their warrants, seven days at least previous to the day 
so appointed for calling a meeting of the said citizens, at such 
place and hour as they may deem expedient, for the purpose of 
choosing a warden, clerk, and inspectors, for each ward, and all 
other officers, whose election is provided for in the preceding 
sections of this act." 2 The selectmen issued their warrant, warn- 
ing the electors to hold their first meeting, under the statute, for the 
choice of ward and city officers, and for the election of a county 
treasurer. It was held by the supreme court that, as to the office 
of county treasurer, the election was illegal and void. 3 

§ 308. In Wisconsin the functions of a town meeting are in 
general those of a deliberative body, except in the election of such 
officers as the statute requires to be elected by ballot, and, when 
the proceedings are not regulated by the statute, the general rules 
of parliamentary law, so far as applicable, are to be observed and 
enforced in conducting the business of the meeting. Propositions 
upon which such meeting may lawfully act may be submitted to 
it by motion, or resolution, or in the form of proposed by-laws, or 
orders, by any elector of the town ; and the chairman cannot 
prevent action thereon by neglecting or refusing to present the 
same to the meeting. Such propositions are open for discussion 
and amendment, and may be adopted and rejected, in whole or 
in part ; and the action of the meeting thereon may be recon- 
sidered, on motion for that purpose made within one hour after 
the vote was taken. Unless otherwise ordered by the meeting, 
votes are to be taken viva voce, or by a division ; if taken by 
ballot a reasonable opportunity is first to be given to amend and 
perfect the proposition, and the result of the ballot is to be ascer- 
tained and determined in time to enable any elector to move a 

'Stat. Mass. 1854, p. 179, s. 18. 3 Ellis v. Commissioners, 2 Gray, 370. 

2 Id. p. 182, s. 23. 



269 

reconsideration. These rules are applicable to the adoption of a 
resolution to change the place of the meeting, under the statute 
providing that " the annual town meetings, in each town, shall be 
held at the place where the last town meeting was held, or at 
such other place therein as shall have been ordered at a previous 
meeting." 1 A vote by ballot to change the place of the meeting, 
no proposition to that effect having been submitted to the meet- 
ing, as a deliberative body, nor vote by ballot ordered, is void. 
Of two elections held the next year, one at the place designated 
by such ballot, and the other at the place of the previous meeting, 
the former is void and the latter valid. 3 

^tat. Wis. 1871, c. 15, s. 30. 2 State v. Davidson, 32 Wis. 114. 





Secs. 


(3) State officers 


. 320-326 


2. Place . 


. 327-330 



CHAPTEK XIV. 

TIME AND PLACE OF ELECTION. 

Secs. 
1. Time. 

(1) In general . . . 309-313 

(2) Kepresentatives and delegates 

in congress . . 314-319 

§ 309. Where a statute specifies the time, within which a public 
officer is to perform an official act affecting the rights and duties of 
others, it will be considered as directory merely, unless the nature 
of the act to be performed, or the language used by the legisla- 
ture, shows that the designation of the time was intended as a limita- 
tion of the power of the officer. 1 When a duty is required by 
the statute to be performed on a certain day, and the object con- 
templated by the legislature cannot otherwise be carried into effect, 
the time prescribed must be considered imperative ; but if there 
is nothing indicating that the exact time is essential, the require- 
ment is to be considered as directory. 3 It is competent for the 
legislature, when not restrained by constitutional provisions, to 
make any regulations for the exercise of the elective franchise 
mandatory, so as to render elections held in disregard of such 
regulations invalid. While the consequences of holding such 
regulations merely directory are often deplorable, it seems to be 
the policy of the law to make most provisions regulating the elec- 
tions directory, and to regard violations of such regulations as 
mere irregularities not fatal to the election. 

§ 310. But statutes prescribing the days for holding elections 

1 People v. Allen, 6 Wend. 486 ; Jones 230 ; Williams v. School District, 21 

v. Carnahan, 63 Ind. 229; Mayor v. Pick. 75; City of Lowell v. Hadley, 8 

Weems, 5 id. 547; Black v. Weathers, Mete. (Mass.) 180; Heath's case, 3 Hill, 

26 id. 242 ; Dillon, Munic. Corp. s. 839 ; 42 ; Gale v. Mead, 2 Den. 160 ; People 

Dwarris Stat. 221, 228 ; Smith's Const. v. Holley, 12 Wend. 481 ; Jackson v. 

ss. 670-674; Sedgwick Const. Law, 316- Young, 5 Cow. 269; Colt v. Eves, 12 

328; People v. Trustees, 51 111. 149; Conn. 242; Savage v. Walshe, 26 Ala. 

Webster v. French, 12 id. 302 ; State v. 619 ; Kex v. Loxdale, 1 Burr. 415. 
Smith, 22 Minn. 218 ; State v. Harris, 2 Colt v. Eves, 12 Conn. 243. ■ 

17 O. St. 608 ; Pond v. Negus, 3 Mass. 

270 



271 

are generally mandatory ; and elections held on different days will 
be void. At the same time statutory provisions requiring the 
polls to be opened and closed at certain hours of the day are not 
generally mandatory ; and, in the absence of fraud and injurious 
consequences, a failure to comply with them will not generally, of 
itself, render the election void. Where it is provided by law that 
an election shall be held within fifty days after the presentation of 
the petition therefor, an election held after the expiration of the 
fifty days will be void. 1 Where the vote, on a proposition to 
issue the bonds of a municipal corporation, was had on the third 
day after the passage of the ordinance providing for the election, 
according to the requirements of the ordinance, the court declined 
to presume, in the absence of proof, that the time was too short. 2 
Where the statute provides that in case of a vacancy, in a public 
office, a " successor shall be elected at the first annual election 
that occurs more than thirty days after the vacancy shall have 
happened," neither the day on which the vacancy occurs, nor that 
on which the election is held, can be included in the thirty days 
prescribed by the constitution. 3 Where the statute requires an 
election, on the question of prohibiting the sale of intoxicating 
liquors, to be held three days, 4 the requirement is mandatory, and 
a by-law adopted by a majority of 193 votes, at an election held 
for two days only, in which two hundred and fifty electors failed 
to vote, will be set aside. 5 But where, in such case, the major- 
ity for the by-law is 794, and only 399 votes fail to be polled, 
the by-law will not be set aside, because the lost votes, if polled, 
would not have affected the result. 6 

§ 311. In England the poll is held, by the returning officer, on the 
day fixed in his original notice of election, and in the subsequent 
notice given on adjournment. In the case of an election for any 
county, other than Orkney, or for a district borough, other than 
the district including Kerkwall, the day fixed by him for the poll 
must be not less than two, nor more than six, days after the day 
fixed for the election, and in the case of an election for a borough, 
other than a district borough, the day must be not less than three 
clear days after the day fixed for the election. 7 The returning officer 

'Gossard v. Vaught, 10 Kan. 162. 5 Johnson's case, 40 U. C. Q. B. 297. 

2 City v. Butcher, 3 id. 104. 6 Malone's case, 41 id. 170. 

3 State v. Brown, 22 Minn. 482. 7 35 & 36 Vict. c. 33, rule 14. 

4 Can. Stat. 27-28 Vict. c. 18. 



272 

may designate for the election any two hours between ten o'clock 
a. m. and three p. m. of any days, except Sunday, Good Friday, 
and Christmas day, not later than nine days after the receipt of 
the writ, with an interval of not less than three clear days, between 
the day on which he gives the notice and the election. The notice 
is given by advertisements, placards, hand-bills, or otherwise, at 
the discretion of the returning officer; and copies are sent, by 
post, to the postmaster of the principal post-office of each pre- 
cinct, by whom the notice is immediately published in the man- 
ner in which post-office notices are usually published. 1 If, after 
the adjournment of the election, for the purpose of taking a poll, 
and before the commencement of the poll, any of the candidates, 
who have been nominated, die, the returning officer will counter- 
mand the notice of the poll, and all the proceedings must be had 
anew, as if the writ had been received, by the returning officer, 
on the day on which he received proof of such death. But no new 
nomination will be necessary in the case of any candidate who 
stood nominated at the time of the countermand of the poll. 2 

§ 312. When the state constitution requires a general election 
to be held on a designated day, in each year, and the general 
election law provides the requisite machinery for conducting elec- 
tions and ascertaining the results, if the term of an office be fixed 
by the constitution, and its commencement be fixed by law, the 
absence of an express statutory provision for an election to fill such 
office, for a second, or subsequent, term, will not render void an 
election held for that purpose, at the time fixed for the last " reg- 
ular election," before the expiration of the constitutional term ; 
but, in such case, the constitution executes itself, and of its own 
force authorizes the election. 3 A statutory provision that, "on 
the first Monday of April next, an election shall be held in said 
town, for the president and for members of the town council ; and 
forever thereafter on the first Monday of April, of each year, there 
shall be an election held for said officers," 4 is directory and, if 
the officers elected on that day refuse to qualify, those elected on 
a subsequent day will be officers de facto and their acts will be 
valid as to third persons, and the public. 5 Where the statute 

1 35 & 36 Vict. c. 33, rules. 4 Laws 111. 1859, 640. 

2 Id. s. 1. 5 Coles County v. Allison, 23 111. 437. 

3 State v. Thanan, 10 Kan. 191. 



273 

requires a special election, for the relocation of a county seat, to 
be held fifty days after the date of filing the petition therefor, and 
provides that, in case a majority of all the votes is not cast for 
any location, a second election shall be had, at which votes may 
be cast only for the two places having the greatest number of 
votes at the first election, it was held that it was not necessary to 
hold the second election within fifty days after the date of filing 
the petition therefor. 1 

§ 313. In Pennsylvania the tenor of legislation relating to filling 
vacancies in public offices is in favor of elections by the people, 
at the earliest opportunities, after the occurrence of the vacancies ; 
and a statutory provision, in which the time designated for filling 
a vacancy is doubtful, should be construed in harmony with this 
general tenor of legislation, rather than in derogation of the rights 
of the people. 2 When the state constitution provides that vacan- 
cies in judicial offices shall be "filled by appointment by the gov- 
ernor, to continue until the first Monday of December succeeding 
the next general election," a statute which provides that every 
such vacancy shall be filled at the first general election happen- 
ing " more than three calendar months after the vacancy shall 
occur," does not embarrass, or impair, the right of election, but 
prescribes a reasonable time for a choice, and is a valid and con- 
stitutional regulation. 3 Under a statute providing that " a gen- 
eral election shall be held annually, on the second Tuesday in Octo- 
ber, at which all existing vacancies in office " shall be filled, and 
requiring the clerk of the circuit court, at least twenty days before 
the election, to " certify to the sheriff what officers are to be elected," 
and the sheriff to give fifteen days' notice of such election, it was 
held that a vacancy in the office of county judge, which was 
made by resignation, on the thirtieth of September, could not 
be filled, at the general election held on the eighth of October, 
because there was no opportunity for the clerk to make the cer- 
tificate, or for the sheriff to give the notice required by law. 4 A 
constitutional provision that, "in any such case of vacancy in an 
elective office, a person shall be chosen to said office, at the next 
general election, unless the vacancy shall happen within three 

1 Conley v. Fleming, 14 Kan. 3 Commonwealth v. Maxwell, 27 Penn. 

2 Commonwealth v. Evans, 102 Penn. St. 44. 

St. 394. 4 Beal ©■. Ray, 17 Ind, 554. 

18 



274 

calendar months immediately preceding such election, in which 
case the election for said office shall be held at the second suc- 
ceeding general election," 1 is not applicable to offices to be filled 
at an election which is not a general election. 3 

§ 314. By section twenty-five of the revised statutes the Tuesday 
next after the first Monday in November, in the year 1876, was 
established as the day for the election of representatives and dele- 
gates, to the forty-fifth congress, in each of the states and terri- 
tories ; and the Tuesday next after the first Monday in November, 
in every second year thereafter, was established as the day for the 
election, in each of said states and territories, of representatives 
and delegates to the congress commencing on the fourth day of 
March next thereafter. But by section six of the act of March 
3, 1875, 3 this provision is " modified so as not to apply to any state 
that has not yet changed its day of election, and whose constitu- 
tion must be amended in order to effect a change in the day of the 
election of state officers in said state." The time for holding elec- 
tions in any state, district, or territory, for representative or dele- 
gate to fill a vacancy, whether such vacancy is caused by a failure 
to elect, at the time prescribed by law, or by the death, resignation, 
or incapacity, of a person elected, may be prescribed by the laws 
of the several states and territories respectively. 4 The effect of 
section six of the act of March 3, 1875, was not restricted to those 
states, whose constitutions required amendment in order to enable 
their legislatures to change the time of election of every state offi- 
cer, but it applied to all states in which such amendment was 
necessary to effect a change in the time of electing any state 
officer. 5 

§ 315. The act of March 3, 1875, modifying the general law 6 
prescribing the time for the election of representatives and dele- 
gates, so as to exempt from its operation any state in which the 
time of the election of state officers could not be changed, without 
an amendment of its constitution, was not applicable to the state 
of Colorado.'' The provisions of the enabling act for Colorado, 
relating to the time of electing a representative, were only appli- 

1 Const. Penn. 1874, art. 4, s. 8. 4 Eev. Stat. 26. 

2 Commonwealth ®. Callen, 101 Penn. 5 Holmes v. Wilson, 1 Ells. 322. 
375. 6 Rev. Stat. U. S. s. 25. 

3 18 Stat. 400. 7 Patterson v. Belford, 1 Ells. 52. 



275 

cable to the election of the first representative from that state. 1 The 
people of Iowa intended to provide, in the constitution of 1857, 
for annual general elections of state officers, to be held, on the days 
of the presidential elections, in the years when such elections 
occurred, and in other years on the second Tuesdays of October ; 
and it was not their purpose, in the schedule, to permit the legis- 
lature to make a change in the day of the general election in any 
year, after the first election to be held under the new constitution. 
The second Tuesday of October, 1878, was the lawful time for the 
election of representatives, in congress, from the state of Iowa. 2 

§ 316. In the first congressional district of West Yirginia two 
elections were held for representatives in the forty -third congress, 
the first on the fourth Thursday of August, 1872, and the second 
on the fourth Thursday of October, 1872. No votes were cast at 
the October election except for representatives. At the August 
election D. received 13,361 and W. 12,948 votes. At the October 
election W. received 3,708 and D. no votes. The question was 
whether the election held in August, or that held in October, was 
the lawful election. 

The new constitution of the state, which was ratified, by a vote 
of the people, on the fourth Thursday of August, 1872, the day on 
which the first of the two congressional elections was held, con- 
tains this provision: "The general elections of state and county 
officers and members of the legislature shall be held on the second 
Tuesday of October, until otherwise provided by law." But the 
convention which framed this constitution adopted a schedule 
containing the following provisions : " The officers authorized, by 
existing laws, to conduct general elections, shall cause elections to 
be held, at the several places for voting established by law, in each 
county, on the fourth Thursday of August, 1872, at which elec- 
tions the votes of all persons qualified to vote, under the existing 
constitution, and offering to vote, shall be taken upon the question 
of ratifying or rejecting this constitution and schedule. On the 
same day, and under the superintendence of the officers who 
shall conduct the election for determining the ratification, or 
rejection, of the constitution and schedule, elections shall be held, 
at the several places of voting in each county, for senators and 
members of the house of delegates, and all officers, executive, 

1 Patterson v. Belford, 1 Ells. 52. 2 Holmes v. Wilson, 1 Ells. 322, 



276 

judicial, county, or district, required by this constitution to be 
elected by the people." 

The state law in force at the time of the adoption of the consti- 
tution contained these provisions : " 1. The general election of state 
district, county, and township officers, and members of the legisla- 
ture, shall be held on the fourth Thursday of October. 2. At the 
said elections, in any year, there shall be elected delegates to the 
legislature and one senator for every senatorial district. And in 
the year 1870, and every second year thereafter, a governor, sec- 
retary of state, treasurer, auditor, and attorney-general for the 
state, a prosecuting attorney, surveyor of lands, recorder, and the 
number of assessors prescribed by law, and a representative in 
the congress of the United States, for the term beginning on the 
fourth day of March next after the election, for every congres- 
sional district ; and, in the year 1870, and every fourth year there- 
after, a judge of the supreme court of appeals for the state, and a 
clerk of the circuit court, and a sheriff of every county ; and, in 
the year 1874, and every sixth year thereafter, a judge for every 
circuit." 

Five members of the committee of elections were of the opinion 
that the effect of this statute was, not merely to provide that rep- 
resentatives should be chosen, at the general election, but to pro- 
vide that they should be chosen on the fourth Thursday of Octo- 
ber ; that the constitutional provision for the general election of 
state and county officers and members of the legislature on the 
second Tuesday in October did not apply to representatives ; that 
the schedule, fixing the election of certain officers therein desig- 
nated on the fourth Thursday of August, 1872, did not apply to 
representatives, because it provided for the election of such dis- 
trict officers as were required, by the constitution, to be elected 
by the people ; because the schedule was of no validity until 
approved by the people, on the fourth Thursday of August, 1872, 
and therefore the time for the election held on that day was not 
legally fixed until the election was ended, and was therefore not 
prescribed^ in the sense of the federal constitution ; and because 
the election held on the fourth Thursday of August was not a gen- 
eral election. They recommended the admission of the candidate 
chosen at the October election. 

Two members of the committee were of the opinion that the 



277 

statute required representatives to be chosen at the general elec- 
tion, whenever that occurred ; that the election held on the fourth 
Thursday of August, 1872, was a general election and the only 
general election held in that year; that there was no provision, 
or machinery, for the election of representatives, except at the 
general election ; that the schedule, having been ratified by the 
vote of the people on that day, was valid for the whole day, and 
therefore legally prescribed the time for the election ; that it was 
established by the numerous precedents cited, that the constitu- 
tional provision authorizing the legislatures of the state io prescribe 
the time for holding the election was satisfied if the act prescrib- 
ing the time became valid, by the ratification of the people, at the 
same election. They recommended the admission of the candi- 
date chosen at the August election to the contested seat. 

Two members of the committee were of the opinion that neither 
election was legal and recommended the exclusion of both the 
claimants. 

The house of representatives, by a vote of one hundred and 
thirty-four to eighty-two, admitted the candidate chosen at the 
August election. 1 

§ 317. The time for the election of representatives in congress, 
in the state of Tennessee, was fixed on the first Thursday in 
August, by title six, chapter two, article three, of the code enacted 
in 1858. A law, enacted in 1868, fixed the time for the election 
on the Tuesday next after the first Monday in November. An act 
entitled "An act to regulate the elective franchise, in accordance 
with article four, section one, of the constitution of the state," 
approved June 16, 1870, embraced, in its first section, provisions 
defining and regulating the elective franchise ; in its second sec- 
tion, a repeal of certain designated acts relating to the elective 
franchise, not including the act of 1868 ; and, in its third section, 
the following provision : " That title six, chapter two, articles 
three, four, five, six, seven, and eight of the code of Tennessee, 
relating to elections by the people, be and the same are hereby 
re-enacted and revived, except as altered or repealed by this act." 
The state constitution contained the following provisions : " No 
bill shall become a law which embraces more than one subject ; 
that subject to be embraced in the title. All acts, which repeal, 

1 Davis v. Wilson, Smith, 108. 



278 

revive, or amend former laws, shall recite, in their caption, or 
otherwise, the title or substance of the law repealed, revived, or 
amended." 1 The election of representatives for the forty-second 
congress was held, in all the congressional districts of the state of 
Tennessee, in the month of November, as provided in the law of 
1868. A protest against the legality of these elections was pre- 
sented to the house by a citizen of the state. It was based on the 
ground that the act of 1868 was repealed and that of 1858 restored 
by the law of June 16, 1870. The committee concluded that it 
was not the intention of the legislature to repeal the law of 1868, 
by the enactment of the law of 1870, because such an intention 
would have involved a purpose to violate the provisions of the 
constitution cited above, and also a purpose to violate provisions 
of the constitution fixing the election of certain state and county 
officers on a day different from that fixed by the code of 1858 ; 
and because the act of 1868 was not embraced in the enumeration 
of statutes repealed by the act of 1870. 2 

§ 318. A representative from Pennsylvania resigned October 15, 
1804. On the twenty-second of the same month the governor 
issued his writ, directing a special election to be held on the second 
of November. The writ was received, by mail, at the prothono- 
tary's office October 30, but was not proclaimed by the sheriff until 
October 31. The election was held November 2, on the day fixed 
by law for the election of presidential electors. The committee 
reported that, in ordinary cases, a longer period ought to inter- 
vene between the time of public notice and the day of the election, 
but recommended that the representative elect be permitted to 
hold his seat. The house sustained the report of the committee. 3 

§ 319. In 1808, the governor of the territory of Indiana lawfully 
dissolved the legislature of that territory, which, according to a 
law of the United States, contained eight representatives. On the 
third of February, 1809, the act which divided the territory of Indi- 
ana and organized the territory of Illinois was passed, containing, 
amongst other provisions, the following : that after the passage 
of the act, the house of representatives of the territory of Indiana 
should contain not less than nine, nor more than twelve members, 
to be apportioned by the general assembly, although at the time of 

1 Const. Tenn. art. 2, s. 17. 3 Hoge's case, C. & H. 135. 

n - Tennessee cases, Smith, 3. 



279 

the passage of the latter act there was no general assembly in exist- 
ence. Thereupon the governor, on the fourth day of April, 1809, 
by proclamation, ordered an election of a house of representatives 
of eight members, and also of a delegate to congress. Neither of 
the parties to the contest questioned the legality of this action of 
the governor. The committee decided that the election of members 
of the legislature and of a delegate to congress under the govern- 
or's proclamation was illegal, and reported the following resolution : 
"Resolved, That the election held for a delegate to congress for the 
Indiana territory, on the twenty-second of May, 1809, being without 
authority of law, is void, and consequently the seat of Jonathan 
Jennings, as a delegate for that territory, is hereby declared to 
be vacant." 1 

§ 320. A provision, in a new constitution, that all elections for 
city, ward, borough, and township officers, for regular terms of 
service, shall be held on a day specially designated for that pur- 
pose, does not modify a prior statute declaring that, in case of a 
vacancy in an office specified, a person shall be chosen for the 
unexpired term at the next general election. 2 It was provided, 
in the constitution of Indiana, that the judges of the supreme 
court should hold their office for six years ; that any vacancy 
occurring, in the office of judge of that court, should be filled by 
an appointment of the governor, to expire when a successor should 
be elected and qualified. The statute required a general election 
to be held on the second Tuesday in October, " at which all ex- 
isting vacancies in office, and all offices, the terms of which will 
expire before the next general election thereafter, shall be filled, 
unless otherwise provided by law." It was held that a resignation 
of a judge of the supreme court, dated in August, to take effect 
the succeeding January, occasioned no vacancy to be filled in the 
month of October following the date of the resignation ; that, 
under the constitutional and statutory provisions cited, there were 
two terms for which the office of judge of the supreme court might 

1 Kandolph v. Jennings, C. & H. 340. returned as a delegate from Indiana ter- 

The vote on this resolution in the ritory, is entitled to his seat in this house." 

house was, yeas 30, nays 83. A motion to Without any action on the resolution Mr. 

recommit the report was lost, there being Jennings retained his seat. 

only 30 yeas. The following resolution 2 Brooke v. Commonwealth, 86 Penn. 

was offered, and, afterdebate, withdrawn, St. 163. 

viz : '■''Resolved, That Jonathan Jennings, 



280 

» 

be held ; a term by election of six years, and a term by appoint- 
ment for the period intervening between such appointment and 
the qualification of the person elected at the general election next 
succeeding the appointment ; that such judges could only be 
elected when there was an existing vacancy, or when an appointee 
was occupying the office, or when the term, for which an incum- 
bent had been elected, would expire before another election ; and 
that neither of these occasions for an election of judge had oc- 
curred in October. And the court denied an application for a 
mandamus to compel the governor to commission a judge elected 
in October. 1 

§ 321. Under a statutory provision that certain officers shall 
be chosen " at the next general election, on the first Monday in 
August, 1874, and every year thereafter," an alteration, in the time 
for holding the general election, will not change the time for the 
election of such officers, which will still occur on the first Monday 
in August. 2 A statute providing that, "in every county where, 
under existing laws, there shall be a judge of probate, whose term 
of office does not expire until the first day of January, 1881, there 
shall be a judge of probate elected, at the general election in the 
year 1880," 3 did not authorize the election, at the general election 
in 1880, of a successor to a judge of probate whose term expired 
in August, 1880. 4 A statute authorizing the election of clerks of 
district courts, " in the year 1879, and every four years thereafter," 
in counties containing not less than eight thousand inhabitants, 
does not authorize an election of such clerks, during the intervening 
years, in counties th en attaining that population. 5 A law was passed 
on the eighteenth day of April, 1870, in the following words : 
" There shall hereafter be elected, by the qualified electors in each 
county in this state, on the second Tuesday in October biennially, 
one county auditor for such county, who shall hold his office for 
two years from the second Monday next after his election : Pro- 
vided, That all auditors now in office shall continue to hold their 
offices until two years from the second Monday in November 
next after taking possession of their said offices ; and their suc- 
cessors shall be elected on the second Tuesday of October next 

1 Biddle v. Willard, 10 Ind. 62. "State v. Gammon, 73 Mo. 421. 

2 People v. Sloan, 14 Ills. 476. "State v. Stauffer, 11 Neb. 173. 

3 Kev. Stat. Mo. 1879, s. 1192. 



281 

preceding the expiration of their terms, as herein provided." 1 It 
was held that the second Tuesday of October, 1871, and not the 
second Tuesday of October, 1870, was the time fixed for the elec- 
tion of successors to county auditors whose terms of office were, 
by prior laws, made to expire on the second Monday of March, 
1871 ; and that elections held in such cases on the second 
Tuesday of October, 1870, were unauthorized and void. 2 

§ 322. The constitution of Massachusetts contained the follow- 
ing provision : " The meeting for the choice of governor, lieu- 
tenant-governor, senators and representatives, shall be held on 
the second Monday of November, in every year ; but meetings 
may be adjourned, if necessary for the choice of representatives, 
to the next day and again to the succeeding day, but no further. 
But, in case a second meeting shall be necessary for the choice 
of representatives, such meeting shall be held on the fourth Mon- 
day of the same month of November." Where a meeting was held 
on the second Monday of November, for the choice of representa- 
tives and other purposes, at which meeting it was voted not to 
send any representatives, and then the meeting was dissolved, and 
the selectmen, at the written request of the requisite number of 
freeholders, called another meeting, for the choice of representa- 
tives, on the fourth Monday of November, at which meeting the 
election was effected, it was held that, by the proceedings of the 
first meeting, and the request for the calling of the second, such 
second meeting was made "necessary for the choice of representa- 
tives," within the meaning of the constitutional provision. 3 Under 
a statute authorizing a second election of members of the state 
legislature on the fourth Monday of November, when " necessary," 
it was held that when the representative elected on the second 
Monday of November declined the office and notified the select- 
men thereof, a second meeting for the choice of representative 
had become necessary, and might be lawfully held on the fourth 
Monday. 4 It is not essential to the validity of a meeting, for 
the election of a representative, on the fourth Monday of Novem- 
ber, that a petition should be properly presented to the selectmen 
to call the same, or that they should state any reason, at the 
opening of the meeting, for having called it. 5 The constitution 

'Stat. Ohio, 1870, p. 103, s. 1. 4 Hartwell's case, C. S. & J. 351. 

2 State v. Dombaugh, 20 Ohio St. 167. 6 Webb's case, id. 665. 

3 Harris' case, C. S. & J. 272. 



282 

of Massachusetts does not permit the second meeting for the 
choice of representatives, which is held on the fourth Monday of 
November, to be adjourned to a subsequent day. 1 A legal elec- 
tion cannot be superseded, or invalidated by another election made 
at a subsequent town meeting. 2 When a school district, at its 
annual meeting, decides to elect for the ensuing year, and elects 
but one trustee, who accepts the office, it cannot, at a subsequent 
adjourned meeting, rescind the vote and elect two other trustees. 3 
It is not a valid objection to a meeting on the fourth Monday of 
November that the meeting on the second Monday was adjourned 
to the next day and was then adjourned again to the next suc- 
ceeding day. 4 

§ 323. The words " members of the legislature," in a provision 
of the constitution of Kansas that the officers of the executive 
department " shall be chosen, by the electors of the state, at the 
time and place of voting for members of the legislature, and shall 
hold their offices for the term of two years from the second Mon- 
day in January next after their election, and until their successors 
are elected and qualified," were held to include the members of 
both branches of the legislature, so as to fix the choice of execu- 
tive officers at the biennial elections, at which members of both 
houses of the legislature were chosen. 5 

§ 324. If the state constitution do not expressly require an 
election, to fill a vacancy, to be held at the next general election 
after the vacancy happens, a statute, providing that such vacancy 
shall be filled at the next general election which shall happen more 
than three calendar months after the vacancy occurs, will not 
restrain the right of election, except so far as proper regulation is 
restraint, nor will it conflict with the constitution ; it will be valid, 
and an election, held before the expiration of three months after 
the occurrence of the vacancy, will be illegal and void. 6 A statute 
of Indiana, enacted March 1, 1859, contained the following pro- 
visions : " The officers of said city shall consist of a mayor, two 
councilmen from each ward, a city clerk, treasurer, assessor, engi- 
neer, and street commissioner. All such officers, elected at any 

dates' case, 0. S. & J. 389. 4 Thayer's case, C. S. & J. 395. 

2 McFarland v. Dench, id. 26; Ben- 5 State v. Kobinson, 1 Kan. 17. 

son's case, id. 151. 6 Commonwealth v. Maxwell, 27 Penn. 

3 Richardson's appeal, 5 R. I. 606. St. 444. 



283 

special election, shall hold their offices until the next general 
election, on the first Tuesday in May, and until their successors 
shall be elected and qualified. After the first general election said 
officers shall respectively hold their offices for two years each." 
It was held, by the supreme court of Indiana, that this act applied 
to all cities, whether previously or subsequently organized, and 
that all city officers were to be elected at the first general election 
held after the enactment of the law. 1 

§ 325. An act, relating to the relocation of county seats, required 
the vote to be taken at the April election, which was then the 
general election. 2 Subsequently an act was passed containing the 
following provisions : " There shall be held throughout the state, 
on the second Tuesday of October, in each year, an election for 
all officers required by law to be chosen at such election, to be 
called the general election, except the years of the presidential 
election, when the general election shall be held on the Tuesday 
next after the first Monday in November. Special elections are 
such as are held in pursuance of a special law, and such as are 
held to supply vacancies in any office, whether the same be filled 
by the qualified voters of the state, or any district, county, or 
township, and may be held at such time as may be designated by 
such special law, or the proper officer duly authorized to order 
such election." 3 It was held by the supreme court of Iowa that 
the former act was not repealed, or amended, by the latter. 4 

§ 326. Under a constitutional provision that " all elections for 
state, district, and county officers shall be held at the county seats 
of the several counties, until otherwise provided by law ; and the 
polls shall be opened for four days, from 8 o'clock a. m. until 4 
o'clock p. m. of each day," 5 a statutory enactment that " all the 
elections in the state shall be held for one day only, at each elec- 
tion, and the polls shall be open from eight o'clock a. m. to six 
o'clock p. m." 6 is void ; and a person voting twice, on the one day 
fixed by such statute, is not subject to the penalty, prescribed in 
the provision of another section of the same statute, " that any 
person who shall vote, or attempt to vote, more than once, at the 

1 Williams v. Connelly, 13 Ind. 502. 4 Cole v. Supervisors, 11 Iowa, 552; 

2 Laws Iowa, Eev. 1860, 38. Mather v. Converse, 12 id. 352. 

3 Id. 77. 5 Const. Tex. 1865, art. 3, s. 6. 

6 Stat. Tex. Mch. 31, 1873, c. 19, s. 12. 



284 

same election, shall be deemed guilty of a felony, and, on convic- 
tion, shall be confined in the penitentiary not less than two, nor 
more than five, years." 1 

§ 327. The requirement that the election shall be held at the 
place designated by law is not directory ; it is mandatory, and 
must be obeyed. If, in case of the destruction of a designated 
building, on the eve of an election, the election may be held on 
contiguous ground, as a matter of necessity, still the removal of 
the polls to a place distant three miles from that designated by 
law, or from a village and across a considerable stream to a place 
distant half a mile from the village where the law fixed the place 
of election, without any authority, or absolute necessity, for such 
removal, must render the election held at such place illegal and 
void. 2 An election, held at a place two miles distant from the 
place fixed by law, is illegal and void. 3 When the place of election 
is fixed by a vote of the electors, in accordance with the custom of 
a township, and in the absence of statutory designation of the place, 
an election held elsewhere is invalid. 4 Under statutes requiring 
certain elections, relating to fences, to be held " at the court 
ground of each militia district," 5 and declaring that no person shall 
be allowed to vote, at said election, except in the militia district 
in which he resides," 6 an election for two districts cannot be held 
at the court ground of one of the districts ; the returns of an 
election so held will be rejected. 7 In the forty-fifth congress it 
was held that "the vote of poll 17, where eighty-six republican 
votes were cast, and not one democratic vote, which was held at a 
place unauthorized by law, and about one mile from the place legally 
appointed, with no democratic commissioner present, and appears 
to have been so held for the express purpose of preventing any 
democrats from voting there, should be rejected, and not counted." 8 

§ 328. But an adjournment of an election, in good faith, from 
one school district to another in the same precinct, will not afford 
a sufficient ground for setting aside the election, on an informa- 
tion in the nature of a quo warranto, against the successful can- 

1 Stat. Tex. Mch. 31, 1873, c. 19, s. 31 ; 4 Howard ®. Cooper, 1 Bart. 275. 
Bodriguez' case, 39 Tex. 706. 6 Code Ga. 1882, s. 1455. 

2 Melvin case, 68 Penn. St. 333 ; Juker 6 lb. 

V. Commonwealth, 8 Har. 84. 7 Dysons. Pope, 71 Ga. 205. 

3 Howard v. Cooper, 1 Bart. 275. 8 Acklen v. Darrall, 1 Ells. 124. 



285 

didate, in the absence of any proof that the change affected the 
result. 1 Where it was provided, by statute, that the elections 
should be held at such place, in each town, as the electors thereof, 
in their town meeting, should, from time to time, appoint, and 
that, if, at any election, no place should be fixed for the next elec- 
tion, such next election should be held at the place of the preced- 
ing election, and the subsequent election was held at the place of 
the last election, until noon, when it was adjourned, by the electors, 
to another place in the same town, and was there concluded, it 
was held that the election was legal and valid. 3 The Dogwood 
Flat church was the voting place for the election precinct in which 
it was situated, and had been for years, without any formal desig- 
nation by competent authority, but by the action of those partici- 
pating in the several elections held there. Several months before 
the election of 1883 the house was removed to a point three- 
quarters of a mile from its former site, and erected there by gen- 
eral consent of the neighborhood ; and it was still called by its 
former name, and was used, as it had been before, for public 
assemblies and for holding of justices' courts. The election of 
November, 1883, was held in Dogwood Flat church, at its new 
site, and it did not appear that any elector was at a loss to ascer- 
tain where the election was held, or prevented from voting, by 
the change. The election was properly held at that place. 3 In 
Massachusetts a meeting for the choice of representatives may be 
adjourned from the place where it was originally called to another 
place. 4 Under the law in force in 1801, selectmen, after adjourn- 
ment of a town meeting, could change the place for holding the 
adjourned meeting. 5 

§ 329. There being no statutory provision fixing the time when 
the places for holding elections should be designated, or requiring 
notice to be given of changes in such designations, it was held 
that, in the absence of proof of fraud, or of the admission of 
illegal votes, or of the exclusion of legal votes, an election held 
to determine whether a county should subscribe to the stock of a 
railroad company, was not rendered illegal by the fact that the 
commissioners changed the place of voting, in one of the town- 

1 Farrington v. Turner, 53 Mich. 27. 4 Warren's case, C. S. & J. 403. 

2 People v. Martin, 5 N. Y. 22. 5 Harwich case, id. 38. 

3 Steele v. Calhoun, 61 Miss. 556. 






286 

ships, two days before the election, and gave no notice to the 
voters ; nor by the fact that the inspectors, at two of the precincts, 
made no return of the votes there cast, it appearing that, if the 
whole number of votes cast at those precincts had been against 
the subscription, there would still have been a majority in the 
county in its favor. 1 The place of holding an election was fixed, 
by the proper authority, at a certain store. When the judges of 
election and the voters appeared at the store, on the day of the 
election, the proprietor forbade them the use of it. They then 
repaired to a building on the same side of the street, distant not 
more than one hundred feet from the store ; and there the poll 
was opened, and the election proceeded without hindrance, all the 
voters knowing where the poll was opened. No fraud, or improper 
motive, was shown to have occasioned the change, nor did any 
voter complain that he was thereby deprived of an opportunity 
to vote. It was held, in a proceeding to contest the election, that 
the change of place did not invalidate the election. 2 

§ 330. In England the places for holding elections, if not 
expressly prescribed by statute, are those at which they were most 
usually held during the forty years which preceded 1696. 3 The 
number of the polling places is fixed by the justices of the peace. 4 
The place of election is to be a convenient room, in the borough, 
or, in the case of a district borough, in a town in which the elec- 
tion would have been held before the passage of the ballot act, 5 
subject to the proviso, as to borough elections in England (not 
applicable to the universities of Oxford and Cambridge), that no 
nomination may be held in any church, chapel, or other place of 
public, worship. 6 The proper place for the election of church- 
wardens, in certain parishes, is some convenient place within the 
precincts of the church ; and the rector is the proper person to 
preside, as of common right, and as owning the freehold of the 
church. The cases confirm this doctrine ; and a further sanction 
is given to it by the statute, 7 which does not profess to confer this 
right on the rector, nor use language declaratory of it, but assumes 
and recognizes his possession of it, by enacting that " in case the 

Railroad Oo. v. Geiger, 24 Ind. 185. 4 35 and 36 Vict. c. 33, s. 5. 

2 Dale b. Irwin, 78 111. 170. 5 35 and 36 Vict. c. 33. 

3 Bushby, 21 ; 35 and 36 Vict, c 33 •; 7 6 2 W. 4, c. 45, ss. 68, 78. 

and 8 W. 3, c. 25, s. 3. 7 58 G. 3, c. 69. 



287 

rector " " shall not be present " the meeting shall " nominate a 
chairman." And, in the absence of statutory provisions to the 
contrary, it devolves on the rector to give notice Of the meeting, 
to grant a poll, when demanded, and to direct an adjournment, 
when necessary. 1 

1 Kegina v. D'Oyly, 12 A. & E. 139. 



CHAPTER XV. 

ELECTION DISTRICTS. 

Secs. Secs. 

1. Electors of president and vice- 2. State officers . . . 337-339 

president, and representatives 
and delegates in congress. 331-336 

§ 331. The power to establish election districts, for the choice 
of electors of president and vice-president, is vested exclusively 
in the legislatures of the states. The electors may, however, be 
chosen on a general ticket in any state. The power to establish 
election districts, for the choice of representatives in congress, is 
vested in the state legislatures, subject to the supreme power of 
congress. The states hold the exclusive power to establish election 
districts, for the choice of state officers. That one entitled to vote 
shall not be deprived of the privilege, by the action of the authori- 
ties, is a fundamental principle. It has been held, on constitutional 
grounds, that a law creating a new county, so framed as to leave a 
portion of its territory unorganized, so that the voters within such 
portion could not. participate in the election of county officers, 
was inoperative and void. 1 Whether a statute organizing a county 
be, or be not, constitutional, the territory embraced in such county 
will constitute a part of the congressional district, to which it may 
be subsequently assigned by an act districting the state, for the 
election of representatives in congress. 3 

§ 332. Of the four congressional districts, into which New 
Hampshire was divided, by the state law of 1846, the third con- 
sisted of the counties of Hillsborough and Cheshire.. The elections 
having been held, for all the districts, in 1849, by a subsequent act 
of the legislature, these two counties and four towns of an adjacent 
county were placed in the same district. At an election held to fill 
a vacancy occasioned by the resignation of the representative of 
this district, the electors of these four towns voted, and their votes 

1 Cooley Const. Lim. 616 ; People v. penter, 20 N. Y. 477. See New Hamp- 
Maynard, 15 Mich. 141 ; Lanning v. Car- shire cases, 1 Bart. 47. 

2 Coxfl. Strait, Smith, 428. 
288 



289 

were decisive of the result. The majority of the committee held 
that their votes ought to be counted ; that unless the vacancy had 
been thus filled, under the new law, it could not have been filled 
at all, because the former law had been repealed ; that the circum- 
stance that the electors of these four towns had voted for rep- 
resentatives from two districts was immaterial, because each 
representative, although chosen by a single district, was the 
representative of the whole state. The minority concluded that 
the vacancy could, under the constitution, only be filled by the 
electors of the original district ; that the new state law did not 
apply to the case of a vacancy occasioned by the resignation of a 
representative chosen under the former act ; that the state legis- 
lature had no power to authorize electors of these four towns to 
participate in the election of two representatives of different 
districts ; that, if the vacancy was not to be filled by the electors 
of the original district, it was impossible to say by whom it should 
be filled ; that the mere circumstance of identity, in the numerical 
designation of the districts, was immaterial ; that, if the original 
district had been equally divided between two new districts and 
neither of them had received the same numerical designation 
which the old one had borne, it would have been a question which 
half should participate in the choice. 1 

§ 333. By an act of the legislature of Iowa passed January 17, 

1846, the unorganized county of Boone, which lay north of a line 
extending due west from the northwest corner of Polk county, was 
attached to the organized county of Polk, for " revenue, election, 
and judicial purposes." By the subsequent act of February 22, 

1847, the state was divided into two congressional districts, the 
first embracing the county of Polk and other designated counties, 
together with the unorganized counties and territory south of the 
line aforesaid, the second embracing certain other designated 
counties, with the unorganized county north of said line. No 
provision was made for the electors of Boone county to vote any- 
where, except in Polk county. The majority of the committee 
held that the votes of Boone county were to be counted in the first 
congressional district. The minority dissented. The house on 
various grounds rejected the report of the majority by a vote of 
one hundred and two to ninety-four, and adopted the views of the 

1 Perkins' case, 1 Bart. 142. The house sustained the report, by a vote of 98 to 90, 

19 



290 

minority by the casting vote of the speaker. 1 The state of Tennessee 
having been districted anew, by the confederate legislature, a claim- 
ant demanded a seat in the house, as a representative of one of 
these new districts, composed of parts of two districts already 
represented in the congress of the United States, by virtue of votes 
alleged to have been cast for him, as a candidate for the office of 
representative in congress, at an election held for representative 
in the confederate congress. He was not admitted. 3 

§ 334. By statutory provision the unorganized territory of Iowa 
west of the counties of Monroe and Mahaska, which were both in 
the same congressional district, was attached to those counties, 
respectively, for "election, revenue, and judicial purposes." An 
election precinct was established, by the authorities of Monroe 
county, at Kanesville, in a wild, unsurveyed region, one hundred 
and twenty-five miles distant from the western boundary of Mon- 
roe county, which place was generally supposed to be due west 
from Monroe county. It was claimed, that a survey, made after 
the election, showed that Kanesville was directly west, not of 
Monroe, but of Mahaska county, and that the election was there- 
fore void and the votes were to be rejected. And the majority of 
the committee so held. But the minority concluded that, even 
if Kanesville were due west from Mahaska county, yet, inasmuch 
as it was generally supposed to be west of Monroe county, and 
had, in fact, been under the unquestioned jurisdiction of that 
county, and both Monroe and Mahaska counties were in the same 
congressional district, the votes ought to be counted. The house, 
on various grounds, rejected the report of the majority, by a vote 
of 94 to 102, and also overruled the conclusions of the minority 
by the casting vote of the speaker. 3 

Where an act of a territorial legislature declared all that portion 
of the territory included within certain designated limits " organ- 
ized into a county," but no steps were taken, under the laws of the 
territory, for the organization of the county, by the election of offi- 
cers, it was held, by the committee, that there was in fact no organ- 
ization of the county ; and that the county, notwithstanding the act 
of the legislature, could not exercise any of the powers of an 

'Millers. Thompson, 1 Bart. 118. v. Estabrook, 1 Bart. 299. The house 

2 Bodgers' case, id. 462. approved the report without dissent. 

3 Miller v. Thompson, id. 118 ; Daily 



291 

organized county, and could not legally vote as an organized county 
for either territorial officers or delegate in congress ; and that the 
entire vote of the county was to be rejected. 1 It was provided by 
the organic act that Dakota should not include any territory which, 
by treaty with any Indian tribe, was not without the consent of the 
tribe, to be included within the territorial limits, or jurisdiction, of 
any state or territory, but all such territory should be excepted out 
of the boundaries and form no part of the territory of Dakota, until 
the tribe should signify to the president of the United States their 
assent to be included within the territory. It was held that the ter- 
ritory excepted from the limits of Dakota, by the statute, was that 
which was set apart by treaty with some particular tribe, and so 
excepted by the treaty itself ; that the provision did not apply to 
all territory which Indians might happen to occupy, but only to 
such portions as were held by particular tribes, under and by virtue 
of treaties defining boundaries and stipulating for exclusive juris- 
diction to be exercised by the tribes holding the same. 2 

§ 335. The apportionment, under the census of 1860, first took 
effect in the thirty-eighth congress; and the state of California 
was not entitled to an increased representation, under that census, 
in the thirty-seventh congress. 3 Under the apportionment of 1850 
the state of Louisiana was entitled to four representatives ; and 
by statute it was divided into four districts. Under the appor- 
tionment of 1860, the state was entitled to five representatives. 
But there was no division of the state into districts, under the new 
apportionment, before November 2, 1863. An election, held 
November 2, 1863, by one of the four districts constituted under 
the apportionment of 1850, was invalid. 4 

§ 336. The territorial statutes contained a provision that, when- 
ever the citizens of an unorganized county desired to have the 
same organized, they might make application, by petition in 
writing, signed by a majority of the legal voters of the county, to 
the judge of probate of the county to which such unorganized 
county was attached; whereupon the judge of probate should 
order an election for county officers, in the unorganized county, 
and a return of the votes was required to be made to the organized 
county. It was held that the proper place for the preliminary 

1 Daily v. Estabrook, 1 Bart. 299. " Lowe's case, 1 Bart. 418, 

2 Todd v. Jayne, id. 555. 4 Field's case, id. 580, 



292 

papers, relating to the organization of the new county, was in the 
records of the organized county ; and, it appearing from the cer- 
tificate of the proper officer of that county that the officers of the 
new county had filed their oath of office according to law, and 
from the records of the new county that these officers had been 
duly elected and qualified, it was not to be presumed that the 
preliminary papers did not conform to the law ; and, the county 
having been made a representative district and part of a council 
district by the legislature, it was too late to question its original 
organization. 1 

§ 337. Under a constitution declaring that "the several sena- 
torial districts now existing shall be permanent," the legislature 
has power to change the boundary lines of counties, for all pur- 
poses for which counties are established, except that of constitu- 
ting senatorial districts. 3 Under a constitution making the number 
of representatives, in the state legislature, to be elected by each 
city, town, or representative district, " fixed and unalterable for 
the period of ten years," the representation cannot be divided, or 
apportioned, in the division of the town, or the annexation of a 
part of one town to another. 3 It is not competent for the legisla- 
ture, when incorporating a new town from territory of one or 
more existing towns, to authorize such new town to elect a repre- 
sentative to the legislature, before the next decennial census of 
polls shall have been taken. But it is competent for the legisla- 
ture to provide, in such case, that the new town shall remain, as 
before, a component part of the town, or towns, from which its 
territory is taken, for the purpose of electing representatives, until 
a new decennial census of polls. 4 

§ 338. It was provided, in the constitution of Massachusetts, 
that the mayor and aldermen, or the county commissioners, should 
divide the county " into representative districts, of contiguous ter- 
ritory, so as to apportion the representatives assigned to each 
county equally, as nearly as may be, according to the relative num- 
ber of legal voters in the several districts of each county." This 
imposed upon the mayor and aldermen the duty, not only of divid- 
ing the county into districts, but also of designating the number 

-Morton v. Daily, 1 Bart. 402. ^Keport of Committee, C. S. & J. 379. 

2 Opinion of the Justices, C. S. & J. 4 Opinion of the Justices, id. 386, 634. 

634. 



293 

of representatives to which each district was entitled, and their 
action, in such apportionment, was not merely ministerial, but judi- 
cial ; and it could not be revised by the house of representatives. x 
§ 339. Although a statute increasing the number of voting pre- 
cincts, in a township, may fail to define the boundaries of the new 
precincts, an election, held, upon due notice, at a new precinct, 
will not be invalidated by this defect in the statute, if no votes 
shall be cast except by legal voters of the township, who vote at 
no other precinct. 2 A statute which, in terms, divides one old 
election district into two new ones, terminates the functions of the 
old officers. But a statute which, in terms, merely carves a new 
district out of the old one, leaves the functions of such officers 
undisturbed. 3 Under a statute providing that the presiding judge 
of the county court, and two justices of the peace, shall constitute 
a quorum, it was held that an order establishing election precincts, 
which was made by the presiding judge and a single associate, 
and was followed by an election duly held, in such precincts, by 
officers appointed according to law, upon a registration duly made, 
was effective to give the precincts a de facto existence, under color 
of law, and that the election was valid. 4 An election, held under a 
statute embodying constitutional provisions for the establishment 
of the election precincts and the polls, and for the appointment 
of commissioners, will not be invalidated by the fact that uncon- 
stitutional police regulations, contained in the same statute, and 
relating to the superintendent and his deputies, and to the pres- 
ervation of order on election day, were enforced at such election. 
The people are not to be disfranchised by such unconstitutional 
acts of the legislature. 5 

'Lothrop's case, L. & B. 49. Cas. 617; North Whitehall v. South 

2 Wildman v. Anderson, 17 Kan. 344. Whitehall, 3 S. & R. 121. 
Pennsylvania case, Brightly's Elect. 4 Gause v. Hodges, Smith, 291. 

5 Andrews v. Saucier, 13 La. Ann. 301. 



CHAPTER XVI. 



REGISTRATION. 



Secs. 

1. Constitutionality of registration 

laws .... 340-345 

2. Registration for congressional 

elections ..... 346 

3. Qualification of officers of regis- 

tration 347 

4. Duties 348 

5. Objections and protests . . 349 

6. Refusal to register applicant . 350 

7. Revision of registration . 351-355 

8. Publication of registration list, 356 



Secs. 



9. 



Application of registration laws 

to particular elections . . 357 

10. Essentials of complete registra- 

tion ..... 358 

11. Votes by persons not regis- 

tered .... 359-362 

12. Effect of registration . 363-365 

13. Effect of lists as prima facie 

evidence .... 366 

14. Registration set aside by exec- 

utive authority . „ .367 



§ 340. Among the rules affecting elections, which it is compe- 
tent for the legislature to prescribe, subject to the limitations here- 
after to be considered, are those providing for the registration of 
electors. Such rules do not necessarily touch the qualifications of 
electors; and when they do not they are constitutional and valid, 
even in those states in which the legislatures are not authorized 
to fix or alter the qualifications of voters. 1 In states whose con- 
stitutions do not provide, nor authorize their legislatures to provide, 
that persons shall not vote, unless registered in a prescribed mode, 
the question whether a legislative provision to that effect is, or is 
not, of constitutional validity, always turns upon the question 
whether it is merely a reasonable and convenient regulation of 
the right to vote, or is, under the pretence of regulation, an abridg- 
ment, subversion, or restraint of that right. In a case, which 
arose under a statute of Massachusetts expressly providing that 
none should vote who were not registered, the supreme court of 
that state sustained the statute on the express ground that, in the 
manner in which the registration lists were framed, effectual care 
seemed to have been taken to securce the rights of electors. It 
was a peculiarity of this statute that it entrusted the registration 
to the same men who, as judges of the election, received the votes 
at the polls ; so that the duty of deciding upon the right of per- 



1 Capen v. Foster, 12 Pick. 485. 
294 



295 

sons to vote, — of receiving or rejecting their ballots, — was not 
transferred from one board of officers to another, but remained 
vested in the same board, the time and occasion of its exercise 
being transferred from the polls to the registration proceedings. 
The court said : " And this court is of opinion that, in all cases 
where the constitution has conferred a political right, or privilege, 
and where the constitution has not particularly designated the 
manner in which that right is to be exercised, it is clearly within 
the just and constitutional limits of the legislative power to adopt 
any reasonable and uniform regulations, in regard to the time and 
mode of exercising that right, in a prompt, orderly, and convenient 
manner. Such a construction would afford no warrant for such an 
exercise of legislative power as, under the pretence and color of 
regulating, should subvert, or seriously restrain, the right itself." 1 

The supreme court of Pennsylvania pronounced a registry law 
of that state unconstitutional, on the ground that it impaired the 
free exercise of the right of suffrage conferred by the constitu- 
tion. The court said : " For the orderly exercise of these (con- 
stitutional) qualifications it is admitted that the legislature must 
prescribe necessary regulations as to the places, mode, and man- 
ner, and whatever else may be required to secure its full and free 
exercise ; but this duty and right inherently imply that such regu- 
lations are to be subordinate to the enjoyment of the right, the 
exercise of which is regulated. The right must not be impaired 
by the regulations ; it must be regulation purely, not destruction. 
If this were not an immutable principle, elements essential to the 
right itself might be invaded, frittered away, or entirely exscinded, 
under the name, or pretence, of regulation ; and thus would the 
natural order of things be subverted ; by making the principal 
subordinate to the accessory; to state is to prove this position." 2 

§ 341. A statute which declares that no vote shall be received, 
at any general election, unless the name of the person offering to 
vote be on the register, excepting only those who may have become 
qualified voters before the election, but after the completion of 
the register, is in violation of a constitutional provision prescrib- 
ing the qualification of voters, and not including registration as 
one of such qualifications. 3 Under a state constitution declaring 

1 Capen v. Foster, 12 Pick. 485. 3 Dells v. Kennedy, 49 Wis. 555. 

2 Page v. Allen, 58Penn. St. 338. 



296 

that " no elector shall be deprived of the privilege of voting, by 
reason of his name not being registered," constitutional provisions 
relating to registration are directory, so far as the right of non- 
registered electors to vote is concerned. 1 Registration is not con- 
clusive of a voter's qualification to vote. 2 And an election, held 
without the registration and registration lists required by law, was 
held to be valid. 3 Selectmen are not required to receive the votes 
of those whose names are not on the registration list, and who do 
not apply to have them placed there, at the time appointed by the 
selectmen for receiving such applications. 4 A statute of the state 
of Nevada, which required an applicant for registration to make 
oath that he had not, since arriving at the age of eighteen years, 
voluntarily engaged in rebellion against the government, was void, 
because the constitution of that state provided that persons, who 
had been engaged in rebellion, and had been afterwards pardoned, 
might vote. 5 The constitution of Alabama makes registration 
essential only when it is so provided by law. 6 But in Iowa a 
statute, declaring that "no vote shall be received from any person 
whose name does not appear on the register," is mandatory.' 7 

§ 342. If, under the state constitution, the legislature be com- 
petent to establish, or change, the qualifications of voters, it will 
be no valid objection to a registration law that it has that 
effect; 8 Where the legislature is authorized to prescribe the 
qualifications of voters, and by valid legislative enactment the regis- 
tration is made an indispensable prerequisite to the election, and 
only registered voters are permitted to vote, an absolute failure of 
registration is a sufficient ground for setting aside the election, 
and a qualified elector, who is unlawfully excluded from registra- 
tion, without fault, or want of diligence, on his part, will not be 
entitled to vote, and may be without remedy, except by action for 
damages against the officers of registration. If the failure of the 
registration shall be fatal to the election, it will be in the power 
of the officers of registration to prevent the election, by the 
non-performance of their official duties ; as it is in the power of 
governors, sheriffs, or other officers, whose proclamations are 



J Curtin v. Yocum, 1 Ells. 416. 
2 Claflin v. Wood, L. & K. 353. 
3 Fesseiiden's case, C. S. & J. 41. 
4 Upton's case, id. 292. 



Davies v. McKerky, 5 Nev. 368. 

6 Lowe v. Wheeler, 2 Ells. 61. 

7 Nefzger v. Railway Co. 36 Iowa, 642. 

8 Capen v. Foster, 12 Pick. 485. 



297 

made prerequisites of legal elections, to defeat such elections, by 
declining to perform their official duties. But this does not render 
the registration law unconstitutional. 1 And yet a law which shall 
empower a board of registration wholly to defeat an election, or 
to disfranchise individual voters, although constitutional and valid, 
may be most oppressive and pernicious, especially if so framed 
as to give no time, or opportunity, for a remedy by mandamus. 3 
The British parliament is not restrained, by any constitutional 
prohibition, from the enactment of registration laws, whether such 
laws do, or do not, change the qualifications of voters. 

§ 343. The legislature cannot impair the right of suffrage, vested? 
by the constitution, in those who possess the prescribed qualifica- 
tions, but may regulate the exercise of the right, and may require 
proof thereof, by provisions not inconsistent with the right itself ; 
and a registration law which constitutes the registration list 
evidence of the elector's right, and requires an elector, whose 
name is not registered, to make other reasonable proof of his right, 
to the inspectors, at the time of offering his vote, is valid. 
But voters, whose names appear upon a list used, in fact, as an 
official and valid registration list, at the polls, are not required 
to ascertain, before voting, that the list was made in the manner 
prescribed by law ; their right to vote cannot be impaired by the 
fact that such list was not legally made, or that, not being otherwise 
challenged, they did not furnish other proof of their right. 3 

§ 344. The constitution of Maryland contained the following sec- 
tion : " The general assembly shall provide, by law, for a uniform 
registration of the names of voters in this state, which registration 
shall be evidence of the qualification of said voters to vote at any 
election thereafter held, but no person shall be excluded from voting, 
at any election, on account of not being registered, until the general 
assembly shall have passed an act of registration, and the same 
shall have been carried into effect, after which no person shall 
vote, unless his name appears on the register." 4 The statute was 
in these words : " The judges of election shall not receive, or 
deposit, the ballot of any person until they have found his name 
on the list or register of qualified voters, and have checked it 

'Ellsworth 9. Albin, 44 Mo. 347. 3 State 9. Baker, 38 Wis. 71. 

2 State 9. Hilmantel, 21 Wis. 566 ; State 4 Const. Md. 1851, art. 1, s. 2. 

9. Stumpf , 23 id. 630 ; People v. Kop- 
pelkorn, 16 Mich. 342. 



298 

thereon." 1 It was held by the supreme court of the state that, 
whatever might be the effect of a registration of voters, in a par- 
ticular county, or election district, by officers not legally qualified 
to make such registration, it was not competent for the courts, by 
injunction, to compel the judges of election to conduct the election 
in any other mode than that prescribed by law. 2 

§ 345. Under a constitution, declaring "that the general as- 
sembly shall not authorize any county, city or town, to become a 
stockholder in, or loan its credit to, any company, association, or 
corporation, unless two -thirds of the qualified voters of such 
county, city or town, at a regular or special election to be held 
therein, shall assent thereto," 3 and that " the general assembly 
shall immediately provide, by law, for a complete and uniform 
registration, by election districts, of the names of qualified voters 
in this state ; which registration shall be evidence of the qualifica- 
tions of all registered voters to vote, at any election thereafter 
held ; but no person shall be excluded from voting, at any elec- 
tion, on account of not being registered, until the general assembly 
shall have passed an act of registration, and the same shall have 
been carried into effect ; after which no person shall vote, unless 
his name shall have been registered at least ten days before the 
day of the election," 4 it was held that, while the registration law 
was in force, those persons only were qualified voters whose 
names appeared on the registration books ; that registration was 
the final qualifying act, without which the possession of all other 
qualifications prescribed by law would not entitle the citizen to 
vote ; and that an affirmative vote of two-thirds of the registered 
voters was essential to the validity of a municipal subscription to 
the capital stock of a railway company. 5 

§ 346. The power to enact registration laws applicable to the 
elections of representatives in congress is obviously conferred 
upon congress, by the federal constitution, as a part of the power 
to prescribe the manner of holding elections of representatives. 6 
But a registration law, which, instead of being purely a regulation 
of the manner of choosing these officers, in effect impairs the sub- 
stance of the right of suffrage, or adds to, or alters, the qualifica- 

2 Stat. Md. 1865, c. 174, s. 18. 4 Const. Mo. 1865, art. 2, s. 4. 

2 Hardesty v. Taft, 23 Md. 512. 5 State v. Brassfield, 67 Mo. 331. 

3 Const. Mo. 1865, art. 11, s. 14. 6 Const. U. S. art. 2, s. 1. 



299 

tions of voters fixed by state laws and constitutions, is unauthorized 
and void. The power of congress to make registration laws affecting 
elections of state officers is different in its origin and character, 
and is limited to such appropriate legislation as is authorized by 
the constitution for the enforcement of its provisions. The 
commission appointed for the territory of Utah, under the act of 
March 22, 1882, had no power over the registration of voters or 
the conduct of elections. Their authority was limited to the 
appointment of registration and election officers, the canvass of 
the returns made by the officers of election, and the issue of cer- 
tificates of election to the persons appearing by such canvass to 
be elected. 1 

§ 347. Statutory requirements, relating to the formal organiza- 
tion of boards of registration, are ordinarily directory, and non- 
compliance therewith does not invalidate the election. 2 It was 
provided in one statute, that all public officers (with certain excep- 
tions, which exceptions did not embrace registrars) should take 
and subscribe the oath of office, " before the clerk of the circuit 
court, or before one of the sworn deputies of such clerks." 3 The 
same statute also contained the following clause : " The said clerks 
shall each procure and keep in his office a well bound book, to be 
called the test book, in which shall be printed, or conspicuously 
written, the oaths aforesaid, and every person taking or subscrib- 
ing the same shall annex to his signature the title of the office 
to which he shall have been elected, or appointed, and the date 
of his signature." 4 Another statute contained the following 
provision: "All officers of registration, before entering upon the 
discharge of their duties as such, shall take the oath prescribed 
in the constitution and subscribe the same, in the book of regis- 
tration for their respective wards, or election districts." 5 It 
was held that the registrars were properly qualified by taking and 
subscribing the oath, in the registration books, before any officer 
having authority to administer oaths. 6 A supervisor of registra- 
tion, who was duly appointed by the governor, and took the oath 
of office required by the constitution of the state, and performed 
the duties of supervisor, after inducing men to enlist in the 

1 Murphy <t. Kamsey, 114 U. S. 15. 4 Code Md. art. 68, s. 7. 

2 People v. Wilson, 62 N. Y. 186. 5 Stat. Md. 1865, c. 174, s. 1. 

3 Code Md. art. 68, s. 6. 6 Hardesty «. Taft, 23 Md. 512. 



300 

confederate army, could not, in the opinion of the committee, 
truthfully take the oath of office. But the committee held that 
his acts could not be regarded as void, so as to affect the legality 
of the votes given at the election ; that, having entered the office 
under all the forms of law, he was a good officer de facto, and his 
acts were not to be questioned in a collateral proceeding. 1 If a 
registrar be removed and his successor appointed, and, while the 
former, having no notice of his removal, continues to act, the latter 
fail to qualify and make no attempt to discharge the duties of 
the office, it will not be a fatal defect in the returns that they were 
signed by the former, instead of the latter. For the former was 
certainly acting as registrar, under color of authority, and was an 
officer de facto whose official acts, affecting third parties and the 
public, must be held valid. 3 

§ 348. Under a statute providing that, for a period of time 
designated, the registrars shall keep their books open, " for the 
registration of any electors residing in such precinct, or township, 
and entitled to registration, whose names have never before been 
registered in such precinct, or township, or do not appear in the 
revised list," 3 if the books be not opened at all for that purpose, 
during the time prescribed, and the ballots of those whose names 
are not found on the old registration books be refused, the elec- 
tion will be void. 4 Under a statute, declaring that "it shall be 
the duty of said inspectors to enter, in said lists, the names of all 
persons residing in their election district, whose names appear on 
the poll list kept in said district at the last preceding general elec- 
tion ; and, for this purpose, said inspectors are authorized to take, 
from the office in which they are filed, the poll list made and filed 
by the inspectors of such district at the general election, held next 
prior to the making of such register," 5 the use of the poll list 
of the next preceding general election, in the preparation of the 
preliminary register, is not essential to the validity of the regis- 
tration. In the performance of their duty of entering, in the 
preliminary register, the names of all persons residing in the dis- 
trict, whose names are on the poll list of the next preceding 

1 Burch v. Van Horn, 2 Bart. 205. The 3 Bat. Kev. c. 52, s. 8. 

report of the committee, as a whole, was 4 Perry v. Whittaker, 71 N. C. 475. 

rejected by the house. 5 Stat. N. Y. 1872, c. 570, s. 2. 

2 Giddings v. Clark, Smith, 91. 



301 

general election, the use of the poll list is authorized, but is not 
compulsory. 1 Yoters are not required to register anew, in order 
to conform to a change in the limits of the election precincts ; but 
their names are to be transferred, on the registration lists, by the 
act, or authority, of the commissioners of election. 2 If registrars, 
misconceiving their statutory duty, propound to applicants for 
registration questions not authorized by law, it will not be com- 
petent for a court of equity to remedy the wrong by arresting their 
proceedings by injunction. 3 

§ 349. Under the English statutes, requiring notice to be given 
of any objection to the register of voters, a notice of objection 
will not be invalid, if it bear a date within the time prescribed for 
making objections, although such date be not the actual time of 
the objector's signature. 4 The names of several persons may be 
included in the schedule appended to one notice of objection, 
under 6 Yict. c. 18, s. 7, " each person being so denominated as 
to be commonly understood." 5 If the parish of S. D. and the 
parish, or township, of E. S. constitute the parliamentary borough 
of D. with a separate list of voters for each, an objection to votes, 
in which the objector describes himself as "on the list of voters 
for the borough of D. and township of E. S." will be valid. 6 If 
there be two lists of voters, in a parliamentary borough, an objec- 
tion to votes, which shall not specify the list on which the name 
of the objector is to be found, will be invalid. 7 The insertion of 
the word (" copy"), at the head of the duplicate notice of objection, 
stamped by the postmaster, when that word is not on the notice 
sent to the party objected to, does not vitiate the document as a 
duplicate, and proof of such duplicate is due proof of service of 
notice of objection, under 6 & 7 Yict. c. 18, s. 100. 8 A notice of 
objection to votes, which describes the objector as " of Williams 
place, being now on the register of voters for the county of D." is 
sufficient. 9 

§ 350. A voter applied to one of the selectmen, on the morning 
before the election, to have his name placed on the list of voters. 

1 People v. Wilson, 62 N. Y. 186. 6 Oram v. Cole, Hop. & Phil. 87. 

2 Perkins v. Canaway, 59 Miss. 222. 7 Crqwther n. Bradney, id. 63. 

3 Hardesty v. Taft, 23 Md. 512. 8 Benesh v. Booth, id. 223. 

4 Jones v. Jones, Hop. & Phil. 320. 9 Fitzpatrick's case, 6 Ir. Law Rep. 

5 Smith v. Holloway, id. 281. N. S. 426. 



302 

A friend applied also, in his behalf, for the same purpose, to 
another selectman. Both selectmen promised to place the name 
on the list, but failed to do so. The voter's ballot was, however, 
received at the poll ; but, it appearing that his name was not on 
the list, he was directed to remove his ballot from the box, and 
did so. It was held that he was a legal voter, that his vote was 
wrongfully rejected, and that it should be counted. 3 When the 
name of a person qualified to be a burgess, failed to be registered 
on the burgess-roll, because the overseers negligently omitted to 
send the district list to the town clerk, and he was not permitted 
to prove his qualifications, a mandamus was granted to compel 
the mayor to insert the name in the burgess-roll. 2 When a qual- 
ified elector is, without fault or want of diligence on his part, un- 
lawfully excluded from registration, on account of race, color, or 
previous condition of servitude, he is nevertheless entitled to vote 
for state officers; and if his vote, being duly offered, be rejected, 
it will, upon due proof, be counted by the proper tribunal, on the 
trial of a contested election case. 3 Persons unable to read and 
write, not being legal voters in Massachusetts, cannot be heard to 
complain of any technical violation of law, whereby they are 
deprived of registration. 4 

§ 351. Persons claiming the right to vote in the United King- 
dom, and possessing the legal qualifications therefor, must first be 
registered on lists prepared by the overseers of the parish. On 
certain days courts are held, by barristers appointed by the lord 
chief -justice of England, and the senior judges of the several 
summer circuits, to revise these lists, when claims may be made 
by persons omitted, and objections may be offered to any names 
inserted by the overseers. If an objection be sustained the name 
will be struck from the list ; and the claimant will have no right 
to vote at any ensuing election, unless he shall succeed, at a sub- 
sequent registration, in establishing his claim ; but, in certain cases, 
appeals may be taken to the common pleas division of the high 
court of justice, from the decisions of the revising barristers, 
and the register will be corrected in accordance with the judg- 
ment of the court. 5 The English ballot act makes the register 

Robinson's case, 0. S. & J. 526. 4 Boynton v. Loring, 1 Ells. 346. 

2 Eegina v. Lichfield, 1 Q. B. 453. B May Pari. Pr. 29 ; 2 & 3 W. 4, c. 45 ; 

3 McKay v. Campbell, 2 Abbott U. S. 6 & 7 Vict. c. 18 ; 41 & 42 Vict. c. 26. 
120 ; Mcllwee's case, 3 Am. Law T. 254. 



303 

conclusive of the right to vote. 1 The right of appeal, from the 
revising barrister to the election judge, by persons who tendered 
their votes, after their names had been omitted from the register 
by the revising barrister, which was formerly secured by statute, 2 
has been taken away by the ballot act. In the absence of objec- 
tion to the voter, a revising barrister has no power to expunge a 
voter's name, when the register discloses, on its face, a good qual- 
ification. When the qualification of a voter, to whom there was 
no objection, was entitled to be a " freehold share in Fulham 
bridge," the vote was retained, although the court, in another 
case, 3 had decided that such a share was not a freehold and that 
it conferred no vote. 4 

§ 352. The lists of persons qualified to elect, or be elected, to 
municipal offices, in the burghs of Scotland, were required by law 
to be made up on the 16th of September, in each year, by the 
town clerk of each burgh, in conformity with the sheriffs' lists of 
parliamentary voters for such burghs. The town clerk had no 
authority to alter the burgh lists then made up, even upon infor- 
mation that the sheriffs' lists had been subsequently altered by the 
court of review, but such burgh lists were required to remain until 
the 16th of September, in the following year, and then to be 
altered in conformity with the then existing parliamentary lists for 
the burgh. It was held by the house of lords, on appeal from the 
court of session, that when a person's name stood on the sheriff's 
list, on the 16th of September, and was transferred by the town 
clerk to the burgh list on that day, such person was entitled to 
elect and to be elected to a municipal office, in virtue of so appear- 
ing on the burgh list, although before the period of the municipal 
elections, his name had been, by the decision of the court of 
review, removed from the parliamentary list made up by the 
sheriff. 5 The mayor and assessors have no power to make out a 
new burgess list, their duty, under 5 & 6 W. 4, c. 76, s. 18, being 
only to revise the list sent in by the overseers. 6 

§ 353. Under statutes declaring that " no person shall be 
allowed to vote, except at the polls held in the election district 

1 35 & 36 Vict. c. 33, s. 7. 5 Monteith v. McGavin, 5 01. & Fin. 

2 2 W. 4, c. 45, ss. 59, 60. 459. 

3 Tepper v. Nichols, Hop. & Phil. 202. °Sealfl. Reginam, 3 Jur. N. S. 1244. 

4 Smith v. James, -Har. & Ruth. 338. 



304 

where lie resides, nor unless his name is enrolled on the poll-list 
when he offers his vote in such district," 1 and requiring the board 
of registration, at their final meeting, to " erase from the poll-list 
the names of all persons not then actually residing in such district, 
or who, though actually residents of the district, are not qualified 
by citizenship to vote, or who, for any reason are not entitled to 
be, or remain, enrolled on said list," 2 a vote is illegal, when the 
name of the elector is not on the poll-list of the precinct, where 
the vote is cast, on the day of the election ; and it is, in like 
manner, illegal when the name, having once been entered on the 
poll-list, is subsequently erased by the board of registration, at 
their final meeting. 3 The failure of the selectmen to hold a meet- 
ing one hour previous to the town meeting, for the revision of the 
list of voters, as required by law, will not invalidate an election. 4 
When the contestant waives the objection that one of the selectmen, 
without proper inquiry, struck names from the voting list, or 
restored them to it, the election will stand. 5 

§ 354. On the revision of the burgess lists of a borough divided 
into wards, by the mayor and assessors, under the Municipal Cor- 
poration Reform act of England, the mayor may require a burgess, 
who occupies distinct premises, conferring votes in several wards, 
whose name appears under each, in the burgess lists, to select the 
ward for which he will be enrolled as a voter on the burgess-roll, 
and, in default of a selection by the voter, the mayor may retain 
his name in the list of any one of the wards, which he so occupies, 
and expunge it from the others. 6 When the mayor and assessors 
of a borough, at a court held for the revision of the burgess lists, 
erroneously decided that certain notices of objection were invalid, 
and refused to inquire into the qualifications of the persons 
objected to, it was held, by the queen's bench, that they had 
declined jurisdiction, and the court granted a mandamus, com- 
manding them to hold a court to revise the list, although the time 
limited by law had elapsed. 7 A mayor, having acted on a burgess 
list of a parish, by striking off a name, without objection, cannot 
defend against a mandamus to compel a restoration of the name, 

1 Stat. Cal. 1865-6, p. 297, s. 29. 5 Ames ». Beebe, L. & R. 346. 

2 Id. p. 296, s. 24. 6 Regina v. Mayor, 1 El. & El. 210. 

3 Webster v. Byrnes, 34 Cal. 273. 7 Regina v. Monmouth, 5 L. R. Q. B. 

4 Currier's case, C. S. & J. 297. 251. 



305 

by showing that the list was not signed by the churchwardens, 
or either of them. 1 On mandamus to compel the mayor to admit 
a burgess, whose name has been stricken . from the burgess roll 
on objection, at the revision, the objector may show cause if the 
mayor fail to do so. 2 

§ 355. When it is provided, by statute, that " no name shall be 
stricken from the voting list, by any board of canvassers, unless 
proof shall be presented to said canvassers that such name is the 
name of a person not qualified to vote, or who may not be quali- 
fied according to the provisions of this title," and a fine is imposed 
"if the board shall wilfully and fraudulently reject and cause to 
be erased from said list the name of any person entitled to vote," 3 
the canvassers in the correction oi the voting lists, exercise judi- 
cial functions, and, if liable at all in a civil action, for striking 
a name from the list, or refusing to place a name upon it, still, in 
the absence of proof that they did not act upon evidence of dis- 
qualification satisfactory to themselves, in striking a name from 
the list, they will be entitled to judgment, and in an action against 
them, for refusing to place a name upon the voting list, they will 
be entitled to judgment, in the absence of proof that they decided 
dishonestly, or with a wilful purpose to deprive the plaintiff of 
his rights. 4 

§ 356. An election is not invalidated by a mere failure to pub- 
lish the registration list, in compliance with directory requirements 
of law. 5 The failure of the selectmen to post a list of the voters, 
prior to the election, as required by law, in the absence of evidence 
that such failure was the occasion of the refusal of any legal votes, 
or of the admission of any illegal votes, or of any other injurious 
result, will not invalidate the election. 6 

§ 357. A special election, held on ten days' notice, by statutory 
authority, is necessarily exempt from the provisions of a general 
registration law. 7 An election to determine the question of the 
removal of a county seat is not a state, county, city, or town elec- 
tion within the meaning of the registry law. 8 A registration law, 

1 Regina v. Dover, 11 Q. B. 260 ; 12 6 Newcomb v. Holmes, L. & E. 57. 
Jur. 334. 7 People *>. Ohio Grove, 51 111. 191. 

2 Regina v. Exeter, 4 L. R. Q. B. 110. 8 Boren v. Smith, 47 id. 485; People 

3 Gen. Stat. R. I. c- 7, s. 14. v. Supervisors, 51 id. 191 ; Supervisors 

4 Keenan v. Cook, 12 R. I. 52. v. Davis, 63 id. 405, 
5 Nicholls' case, C. S. & J. 213. 

20 



306 

requiring the board of registration to meet three weeks before the 
election and make the registry, and, upon due notice, to meet again 
one week before the election and revise the registry lists, 1 does not 
apply to an election held to determine the question of giving aid 
to a railway company, under a statute authorizing election to be 
held on ten days' notice. 2 When a statute requires the commis- 
sioners named to call an election, within thirty days after the date 
of its enactment, and the registers are required to commence the 
registration of votes more than thirty days before the election, the 
presumption is that it was not the intention of the legislature to 
apply the provisions of the registration law to such election, and 
the failure to register the voters will not render the election invalid. 3 

§ 3.58. Under an act of parliament providing that " every such 
book, in which the said burgess lists shall have been copied, shall 
be the burgess-roll of the burgesses of such borough entitled to 
vote, after the passing of this act, in the choice of the councillors, 
assessors and auditors of such borough, as hereinafter mentioned, 
at any election which may take place, in such borough, between 
the first day of November inclusive, in the year wherein such 
burgess-roll shall have been made, and the first day of November, 
in the succeeding year," 4 the burgess-roll so constituted is conclusive 
as to the persons entitled to vote, and their qualification cannot 
be questioned, upon an information in the nature of a quo war- 
ranto against a person elected. 5 The alphabetically printed lists 
of voters for a county do not constitute the final and true register 
of persons entitled to vote, until they have been signed, and de- 
livered by the clerk of the peace to the sheriff. 6 The provision 
of 6 & 7 Yict. c. 18, s. 47, so far as it requires the delivery to the 
sheriff to be made before the thirtieth of November, is directory 
only, and failure to comply with it does not avoid the register. 7 

§ 359. The statutes of the state of Illinois contained the fol- 
lowing section : " No vote shall be received, at any state, county, 
town, or city election, in this state, except at town meetings in 
towns adopting the township organization law, if the name of the 
person offering to vote be not in the said register made on Tues- 

1 Gross, Stat. 111. p. 255, s. 79. 4 5 & 6 W. 4, c. 76, s. 22. 

2 People v. Supervisors, 51 111. 191 ; 5 Regina v. Tugwell, 9 B. & S. 367. 
People v. Dutcher, 56 id. 144. 6 Brunifitt v. Bremner, 30 L. J. C. P. 33. 

3 State v. Piper, 17 Neb. 614. 7 lb. 



307 

day, or Wednesday, preceding the election, unless the person 
offering to vote shall furnish to the judges of the election his affi- 
davit in writing, stating therein that he is an inhabitant of said 
district and entitled to vote therein, at such election, and prove, 
by the oath of a householder and registered voter of the district 
in which he offers to vote, that he knows such person to be an 
inhabitant of the district, and, if in any city, giving the residence 
of such person within said district. The oath may be adminis- 
tered by one of the judges or inspectors of the election, at the 
polls, where the vote shall be offered, or by any other person 
authorized to administer oaths ; but no person shall be authorized 
to receive compensation for administering the oath. Said oath 
shall be preserved and filed in the office of the town or city clerk, 
or, in case there be no clerk, then said oath shall be filed with and 
preserved by the judges or inspectors of the proper district. Any 
person may be challenged, and the same oaths shall be put as 
now are, or hereafter may be, prescribed by law." 1 This statutory 
provision requires the oath of the householder, as well as that of 
the unregistered voter, to be in the form of an affidavit. Unless 
both of these affidavits are produced the vote cannot be lawfully 
received and will be excluded by the court. But when both affi- 
davits are on the same paper, and that of the householder, 
although signed by him, lacks the jurat of the magistrate, if the 
vote be received, it will be competent to show that the oath was, 
in fact, administered to the householder by the magistrate. 2 

§ 360. In the determination of a question, which arose under the 
Illinois statute of 1868, the supreme court of the state said : "It is 
claimed that as the others voted, without having been registered 
and without any proof of right, their votes are invalid. It does 
not appear that these voters were challenged, or any objections 
made to their voting, and the presumption must be that they were 
legal voters, and so known to the judges." 3 But, in a later case, 
the same court said : " The presumption of the legality of a vote 
in no way depends upon the omission to challenge or object to it, 
or any presumed knowledge of the judges of election ; but it arises 
from the fact of the deposition of the ballot in the ballot-box. A 
vote so deposited is presumed to be a legal vote until there is evi- 

1 Gross, Stat. 111. 1868, p. 269, s. 83. 3 Dale «. Irwin, 78 111. 170. 

2 Supervisors v. People, 65 111. 360. 



308 

dence to the contrary. And there is no exception in the prohibitory 
words of the statute. The decision in Dale v. Irwin did not go upon 
the principle of there being no challenge of the voter, or objection 
made to his voting, or of presumed knowledge of the judges of elec- 
tion upon the subject, but upon the ground that the prohibition of 
the statute, in this regard, was but directory against receiving such 
a vote, and that failure of observance of this direction would not 
invalidate a vote, which had been received by the judges of election 
as sufficient, and deposited in the ballot-box ; but, once there, the 
presumption would be that it was a legal vote, notwithstanding 
the express prohibitory words of the statute against receiving the 
vote." 1 

§ 361. Statutes requiring non-registered voters to produce affi- 
davits establishing their qualifications are directory. If the elect- 
ors, upon request, refuse to produce such affidavits, their votes are 
to be refused, because of non-compliance with a reasonable regu- 
lation. But if they be permitted to vote, without being required 
to file affidavits, when otherwise qualified, their votes will not 
be illegal. 2 The statute contained the following provision : "No 
vote shall be received, at any annual election in this state, unless 
the name of the person offering to vote be on the said registry, 
made and completed as hereinbefore provided preceding the elec- 
tion ; and any person, whose name is on the registry, may be 
challenged, and the same oaths shall be put as are now prescribed 
by law. This section shall be taken and held, by every judicial 
or other tribunal, as mandatory, and not directory. And any vote 
which shall be received, by the said inspectors of election, in con- 
travention of this section, shall be void, and shall be rejected from 
the count, in any legislative or judicial scrutiny into any result of 
the election." 3 It was held that the effect of this provision was 
to prevent unregistered persons from voting, and to compel the 
registration to be made before the day of the election, but not to 
deprive persons actually registered, before the election, of the 
right to vote, on account of a failure to observe all the minute 
directions of the act in the preparation of the register. 4 In Cali- 
fornia votes cast by persons not registered will be rejected. 5 In 

} Clark e. Kobinson, 88 111. 498. "People v. Wilson, 62 N. Y. 186. 

2 Curtin v. Yocum, 1 Ells. 416. 5 Wigginton v. Pacheco, 1 Ells. 5, 

9 Stat. N. Y. 1872, c. 570, s. 6. 



309 

Massachusetts, when a man's name is not on the voting list and 
he has not asked to have it placed there, he has no right to vote 
and his vote will be rejected. 1 Where the constitution declares 
that " no person not duly registered, according to law, shall be 
allowed to vote," an election, held without a registration, must be 
set aside and the returns rejected. 2 

§ 362. In a contested election case, in the house of representa- 
tives of the United States, it has been held that, when the proof 
shows that persons voted, at a particular precinct, who were not 
registered, without taking the oath prescribed by law, but does 
not show for whom they voted, their votes will be excluded, as 
illegal, by a pro rata deduction from the returned votes of the 
precinct for the respective candidates. 3 

§ 363. Prima facie every man, whose name is on the register 
in force at the time of the election, is entitled to vote. 4 But if a 
person, whose name is on the register, be prohibited from voting, 
by any statute, or by the common law of parliament, nothing in 
the ballot act will entitle him to vote, or relieve him from the pen- 
alties to which he may be liable for voting. 5 Under a statute 
requiring the officers of election to prepare a registration, or voting 
list, before the election, and to use it at the election, if the name 
of a person stands on the list when the voting commences, he has, 
prima facie, a right to vote, and has no occasion then to offer 
proof of his title ; but the officers may still strike off his name and 
reject his vote, if they can show that he is not entitled to vote. 6 
Votes cast by electors, whose names appeared on the registration 
list, but did not appear on the certified copy of the registration 
list furnished to the officers of election, although improperly 
received without the affidavits required by law, will not be 
excluded by the committee of elections of the house of represent- 
atives of the United States. 7 In the absence of express statutory 
provision to the contrary, the presence of a voter's name, on the 
registration list, will legalize the vote when received, although it 

1 Whitaker v. Cummings, L. & B,. 360. 6 Harris v. Whitcomb, 4 Gray (Mass.), 

2 Bisbee v. Finley, 2 Ells. 172. 433; Humphrey v. Kingman, 5 Mete. 

3 Finley v. Walls, Smith, 367. (Mass.) 162. 

4 6 Vict. c. 18, s. 79 ; 19 & 20 Vict. c. 7 Finley v. Walls, Smith, 367; Bell v. 
58, s. 44 ; 13 & 14 Vict. c. 69, s. 85. Snyder, id. 247. 

5 35 & 36 Vict. c. 33, s. 7. 



310 

will not justify the officers in receiving it without the affidavits 
prescribed by law. 1 

§ 364. When a board of registration is invested, by law, with 
judicial powers, the registration list is, in the absence of statutory 
provisions to the contrary, conclusive on the question of the right 
of persons offering to vote, and, by implication, repeals all acts 
permitting the challenge of voters, at the polls, and the determi- 
nation of the right to vote by the officers of election ; and a presid- 
ing officer of election is liable for refusing to permit a registered 
elector to vote, upon a challenge and an adverse decision by the 
selectmen and clerk. 2 It was held, by the majority of the com- 
mittee of elections of the house of representatives, that if an appel- 
late board of registration register certain persons, as qualified 
electors, but enter opposite their names, on the registration list, 
charges which, if true, would be a sufficient ground for a refusal 
of registration, the secretary of state, having no authority to revise 
the action of the board, must accept the registration as correct, 
without regard to the entries. 3 

§ 365. When a person, though not duly qualified, is on the 
burgess-roll of a municipal borough, and his right to be there has 
not been questioned, upon revision of the burgess list in pursu- 
ance of the statute, and he is afterwards elected a councillor, the 
court of queen's bench will refuse to grant a rule nisi for an 
information in the nature of a quo warranto, upon the ground that 
he was not entitled, under the statute, to be on the roll. 4 

§ 366. Under a statute authorizing elections by counties, on the 
question of aiding in the construction of works of internal improve- 
ment, and providing that " a special meeting of the county court 
shall be held, on the first Monday after the return day of such 
election, when the court shall ascertain and render the results of 
the election; and,, if two-thirds of the qualified voters of the 
county shall have voted in favor of the proposition at such elec- 
tion, then it shall be the duty of the court to make such orders 
and adopt such regulations as will give practical effect to the prop- 
osition so voted for," 5 the registration lists are prima facie, but 

1 Finley V. Walls, Smith, 367; Bell v. The recommendation of the committee, 
Snyder, id. 247. as a whole, was overruled by the house. 

2 Hyde v. Brush, 34 Conn. 454. 4 Potts' case, 8 B. & S. 642. 
3 Switzler v. Anderson, 1 Bart. 374. 5 Stat. Tex. April 12, 1871, s. 5. 



311 

not conclusive, evidence for the county court, as to the number of 
qualified voters in the county. The court is empowered and 
required to resort to the appropriate means for informing itself on 
the subject. 1 A burgess, who is rated in two wards, is not bound 
to select in which he will be enrolled ; if his name appear on the 
roll for both, he may vote in either. It is not imperative on him 
to determine in which ward he will vote before the election. 2 
When a man's name is on the check list of one of the wards of a 
city, and he has a legal right to vote in that ward, he cannot law- 
fully vote in another ward ; and if he vote in another ward, his 
vote will not be counted. 3 The fact that a successful candidate 
aided and abetted the registering officer, in the illegal registry of 
a voter, is not a sufficient ground for contesting his election. 4 

§ 367. The amendments of the constitution of the state of Ten- 
nessee, adopted February 22, 1865, contained the following 
provision : " The qualification of voters and the limitation of the 
elective franchise may be determined by the general assembly, 
which shall first assemble under the amended constitution." 5 The 
first general assembly that convened under the amended constitu- 
tion determined the qualifications of voters, limited the elective fran- 
chise, and established a system of registration, by three statutes, 6 
the last of which contained the following clause : " Provided, 
That nothing herein contained shall prevent said commissioner 
from hearing proof, from equally competent testimony, contrary 
to and contravening the proof offered and taken in behalf of said 
applicant ; said commissioner shall be the judge of the weight of 
the conflicting testimony, so far as the same may affect the issuance 
of certificates." The same general assembly enacted a law con- 
taining the following section : " The provisions of this act shall 
extend to any other county in this state, where it shall be made to 
appear, to the satisfaction of the governor, that frauds and irregu- 
larities have intervened in the registration of voters in such county ; 
and the governor shall make known such fact and set aside said 
registration, by proclamation." "Any person violating the provi- 
sions of the above sections, by voting, or attempting to vote, by 

1 Austin v. Kailway Co. 45 Tex. 234. 6 Amend. Const. Tenn. 1865, s. 9. 

2 Eegina v. Tugwell, 9 B. & S. 367. 6 Stat. Tenn. 1865, c. 16; 1866, e. 33; 

3 Whitaker v. Cummings, L. & R. 360. 1867, c. 36. 

4 Meredith v. Christy, 64 Cal. 95. 



312 

virtue of a certificate issued upon a registration thus declared null 
and void, shall be guilty of a misdemeanor and, upon conviction, 
be fined not less than ten, nor exceeding one hundred, dollars." 
On an indictment for voting by virtue of a certificate issued upon 
a registration, which had been declared null and void, and set 
aside by the governor, it was held, by the supreme court of Ten- 
nessee, that, by the judicial determination and certificate of the 
commissioner of registration, under the constitution and statutes, 
the accused had acquired a right to vote, of which he could not be 
deprived, otherwise than by due process of law, and that, whatever 
power the people might exercise, by an amendment of the consti- 
tution, the legislature could not empower the governor to set aside 
a registration, or deprive the accused of the right which he 
acquired by his registration and certificate ; that the statute was 
unconstitutional and void, because the exercise of this power was 
not " due process of law," was repugnant to that provision of the 
state constitution, which authorized the people to elect the officers 
of the government, was opposed to a republican form of gov- 
ernment, and was repugnant to those provisions of the state 
constitution which invested the courts with judicial powers, and 
excluded the executive branch of the government from the exercise 
of those powers. * 

1 State v. Staten, 6 Coldw. 233. 



CHAPTER XVII. 

OFFICERS OF ELECTION. 

Secs. Secs. 



1. Appointment and qualifica- 

tions .... 368-372 

2. Oath . . . . . 373,374 

3. Be facto officers . . 375-377 

4. When ole jure title essential to 

defence 378 



5. Statutes requiring officers to be 

members of different political 
parties 379 

6. Usurpers and intruders . .380 

7. Mandatory requirements . 381-383 



§ 368. Among the irregularities and informalities most frequently 
encountered, in contested election cases, are the want of a legal 
election, or appointment, of the officers of election ; the failure 
of the officers to take the oath prescribed by law ; the want of the 
qualifications prescribed by law ; the absence of one, or more, of 
the officers of election ; unofficial custody of the ballot-box ; the 
want of a proper ballot-box; the adjournment of the election; 
the absence from the return of a certificate of the administration 
of the oath to the officers of election ; the failure to make, or 
return, a list of the voters ; the want of a certificate of the cor- 
rectness of the tally-sheets ; the failure to transmit a poll-book to 
the clerk ; the want of a prescribed caption of the return ; the 
failure to make, or transmit, the returns, at the time prescribed by 
law ; the absence of an oath, or certificate, from the tally-sheet ; 
the omission to fasten the tally-sheet and poll-book together ; the 
insertion of the certificate of the administration of the oath at 
the wrong place in the return ; and a failure to dispose of the 
poll-book registration lists, tally-sheets, ballots, or ballot-boxes, 
according to law. The first two of these irregularities, — the want 
of a legal election, or appointment, of the officers of election, and 
the failure of the officers to take the prescribed oath, — will be 
considered, at some length ; for these are convenient representa- 
tives of the entire group of irregularities and informalities ; they 
come as near as any of the others to the line which separates the 
directory from the mandatory requirements of the statute, and 
mere irregularities of procedure from fatal illegalities ; and the 
principles which will be suggested as applicable to these irregu- 



313 



314 

larities are, a fortiori applicable to all the others. It is not the 
policy of the law to permit the want of strict legality, in the 
appointment of the officers of election, to operate to disfranchise 
the electors. When officers of election, hold under color of 
appointments, or elections, not strictly legal, or, in the absence of 
elections, or appointments, with such an acquiescence on the part 
of the public as may afford a reasonable presumption of a colora- 
ble election, or appointment, and negative the idea of mere 
intrusion, or usurpation, they are officers de facto, and their 
official acts are valid, so far as the rights of individuals having an 
interest in them, and the rights of the public generally, are con- 
cerned. The fact that they were not chosen, or appointed, in 
strict conformity with the law, or were not formally chosen, or 
appointed, at all, will not, of itself, vitiate an election held by such 
officers. 1 

§ 369. In a case decided by the house of representatives of the 
United States, in the thirty-fourth congress, 2 it appeared that the 
officers of election, for one of the precincts, had been chosen in 
April, and not in March, as the law required. The committee 
were unanimously of the opinion that the persons, who officiated 
at the precinct election, were officers de facto, acting in good faith, 
and that, inasmuch as no fraud was alleged, the votes of the pre- 
cinct had been rightfully counted. The contestant objected to 
the vote of one precinct on the ground that one of the judges was 

1 The supreme court of New York, in came into office, by color of title ; and 

a leading case (People v. Cook, 14 Barb. that is sufficient to constitute them offi- 

289), held that the want of legality, or cer p s de facto. The rule is well settled, 

regularity, in the election, or appoint- by a long series of adjudications, both 

ment, of the inspectors of election, did in England and this country, that acts 

not vitiate the election, and said: " It done by those who are officers de facto 

becomes important, in this case, to de- are good and valid, as regards the public 

termine whether the objections, which and third persons who have an interest 

are taken to the inspectors of elections, in their acts, and the rule has been ap- 

in the several cases presented in the bill plied to acts judicial, as well as to those 

of exceptions, are of that character ministerial, in their character. This 

which should be held to invalidate the doctrine has been held and applied to 

canvass in these several localities. These almost every conceivable case. It cannot 

objections are of a twofold character, be profitable to enter into any extended 

extending to the regularity, or legality, discussion of the cases. The principle 

of their appointment, and to their omis- has become elementary, and the cases 

sion to qualify, by taking the proper are almost endless in which the rule has 

oath of office. * It is sufficient that been applied." 

they were inspectors de facto. They 2 Milliken v. Fuller, 1 Bart. 176. 



315 

appointed either by a justice of the peace, or by the other two 
judges, whereas by law it was the duty of the justice himself, 
being present, to act as judge. The objection was overruled, 
because the justice of the peace might not have been present, or, 
if present, might have refused to act as judge, and, in the absence 
of evidence to the contrary, it was to be presumed that there was 
no person present to act as judge. 1 A statute requiring the sheriff 
to "appoint so many writers as he shall think fit," is satisfied by the 
appointment of one for each office voted for. But if it were other- 
wise the failure to appoint more than one would not invalidate 
the election. 3 Under a statutory provision that " all town meet- 
ings shall be called to order by the town clerk, or, in his absence, 
by one of the selectmen, who shall read the warning, and call upon 
the inhabitants assembled to choose a moderator to govern the 
meeting, and shall preside until a moderator shall be elected," 8 
when a moderator, elected at the annual town meeting, without 
another election, presides at another meeting, warned and held 
during the same year, without objection on the part of the voters, 
the action of the meeting is valid. 4 

§ 370. At a town meeting, after the votes for town officers had 
been cast, but before the result was announced, the moderator and 
clerk resigned their offices. The selectmen, who were not present 
at the meeting, made an appointment, in writing, of a clerk pro 
tempore, who appeared and was duly sworn, and made a record 
of his appointment and qualification, and of the subsequent pro- 
ceedings of the meeting, which included the election of a moderator, 
the announcement of the vote for town officers, and of the names 
of the persons elected, the vote to adjourn the meeting, and the 
resignation of the clerk pro tempore. On an information in the 
nature of a quo warranto, by the attorney-general, against the 
persons elected, it was held that the town clerk pro tempore was 
clerk de facto, although the selectmen had no lawful authority to 
appoint a clerk, at the time, and notwithstanding one voter pro- 
tested against the validity of the election ; that his record was 
admissible in evidence, and that the officers were entitled to their 
offices. 5 Under a statute providing that " moderators and town 

a Easton v. Scott, C. & H. 286. 4 State v. Vershire, 52 Verm. 41. 

2 Botts v. Jones, 1 Bart. 73. 5 Attorney-General v. Crocker, 138 

3 Rev. Stat. Verm. 1863, c. 15, s. 7. Mass. 214. 



316 

clerks, when required to preside at town meetings, may appoint 
tellers to aid them in checking the names of voters, or in assorting 
and counting votes," 1 the authority of the tellers does not cease 
with the resignation of the moderator who appointed them, before 
they have reported the result of the vote. 2 

§ 371. Under a statute prohibiting an officer of election from 
acting as such, when himself a candidate, 3 an officer, who, before 
the election, assists in making out a ticket, on which he is named 
as a candidate, which is published throughout the country, and 
yet, before the election, publicly and privately declines to be a 
candidate, and receives no votes, is not a candidate ; and in the 
absence of fraud, or misconduct, an election held by him will be 
legal and valid. 4 Under a statute providing that, if an inspector 
of election shall be a candidate, his office shall immediately become 
vacant, when a vacancy occurs, in the office of one of these 
inspectors, and he does not act, the other two may hold a valid 
election. 5 Where the law declares that "no person, who is a 
candidate for any office, shall be a registrar, judge, or inspector 
of an election," and it appears that one of the candidates did, for 
a time, act as registrar, the vote of the precinct must be rejected. 6 
The fact that the clerk of election was not a citizen of the United 
States is not fatal to the precinct return. 7 

A person who is indisputably ineligible may be an officer de 
facto by color of election. 8 But in cases decided in 1870, the 
opinion of the majority of the committee of elections of the house 
of representatives of the United States was expressed in these 
words : " It is freely admitted that the distinction between officers 
de facto and de jure is not well defined. The decisions of the 
house and even the decisions of the courts, on this question, are 
somewhat inconsistent and conflicting. While we admit that party 
spirit and surrounding circumstances have produced such apparent 
inconsistency, in the decisions of the house, yet we venture to 
assert that in no case has it ever been held that persons were 
officers de facto who did not possess the qualifications requisite 
for officers de jure. One may be an officer de facto, who has been 

J Stat. Mass. 1883, c. 229, s. 1. 5 People v. McManus, 34 Barb. 620. 

2 Attorney -General v. Crocker, 138 6 Yeates v. Martin, 1 Ells. 381. 
Mass. 214. 7 Finley v. Walls, Smith, 367. 

3 Code Tenn. 1858, s. 839. s Baird «. Bank, 11 S. & R. 414; Mc- 

4 McCraw v. Harralson, 4 Coldw. 34. Gregor v. Balch, 14 Verm. 428. 



317 

irregularly, or improperly, appointed, or selected, and his acts 
may be binding on third persons ; but in a case of personal dis- 
qualification of the officer, for reasons which could not be cured 
by a change in the manner of his selection, the rule is universal 
that he can have no jurisdiction, and his acts are void, from the 
beginning, for want of authority." 1 Officers of election, appointed 
by a county court, after the power of appointment has been taken 
away from such court by statute, hold their offices under no color 
of legal authority ; they are not even officers de facto, but are 
mere usurpers, and all official acts performed by them are void. 2 
§ 372. Under a statute providing that "in the election of town 
officers, whose election is not required by statute to be by ballot, 
the check list shall be used, or not, as the town at its meeting 
shall determine ; except that the check list shall be used, in the 
election of moderators of town meetings held for the choice of 
town officers," 3 when the record of a town meeting showed that a 
moderator was chosen with the use of the check list, that a vote 
was then passed that the check list be used in the election of town 
officers and upon the question of granting licenses, and in no other 
case, without a vote of at least one-half the meeting, that the mod- 
erator resigned, and that another person was elected moderator and 
acted as such, it was held that, whether the record did, or did not, 
show that this person was elected by ballot, and by the use of the 
check list, it sufficiently showed that he was a moderator de facto. 4 " 
Where a town clerk died, and the selectmen appointed a clerk pro 
tempore, who was duly sworn and acted at an election of repre- 
sentatives ; and it did not appear that there was any fraud, or 
intentional neglect, on the part of the selectmen, or any objection, 

1 Reid v. Julian, 2 Bart. 822. result of the election uncertain ; Reid v. 

2 Sheafe v. Tillman, 2 id. 907. Julian, 2 Bart. 822 ; and that if officers 
It has been said, by the majority of of election are, by law, disqualified for 

the committee of elections of the house the office, the election has no more 

of representatives that it had long been validity than it would have if no officers 

held by all the judicial tribunals of the at all had been appointed ; but that it is 

country, as well as by the house of rep- otherwise when persons capable of hold- 

resentatives of the United States, and ing the office are appointed, although 

the state legislatures, that an entire poll they may not have complied with the 

should always be rejected for any one of forms of the law. McKee v. Young, 2 

the following reasons, viz : want of au- Bart. 458. 

thority in the election board; fraud in 3 Pub. Stat. Mass. 1883, c. 7, s. 9. 

conducting the election ; such irregu- 4 Attorney-General v. Crocker, 138 

larities, or misconduct, as render the Mass. 214. 



318 

on the part of the voters, the election was not thereby invalidated. 1 
It has been held that where a registrar was removed, a short time 
prior to the election, but was not notified of his removal, and the 
new appointee neither qualified, nor attempted to discharge the 
duties of the office, the former was an officer de facto, and his 
official acts, affecting third persons and the public, were valid. 2 
§ 373. The policy of the law does not require the electors to be 
all present, at the opening of the polls, <to assure themselves that the 
officers are duly elected ; nor does it require them, before voting? 
to ascertain, by inquiry, at the peril of their own virtual disfran- 
chisement, that the officers have been sworn according to law. 
The policy of the law requires the elector to vote. It does not 
require him either to provide, or to guaranty, the machinery, or 
the methods, of the election. For these the law itself makes pro- 
vision. It ordains that its own officers and servants shall place 
and keep the polls in readiness for the elector, so that, upon his 
arrival, he may be able to vote, without unreasonable delay. If 
the right to vote were made to depend upon the due administra- 
tion of the oath to the officers of election, the elector would be 
held responsible for that for which public policy does not require 
him to be held responsible, and his rights would be liable to for- 
feiture, through the carelessness, or fraud, of other men, in matters 
in which fraud is not uncommon and carelessness is almost uni- 
versal. A rule providing that a failure of the officers to take the 
oath should invalidate a fair election, instead of tending to secure 
the rights of the people, would tend to place their rights at the 
mercy of corrupt, or careless, men ; instead of preserving the purity 
of the ballot and subserving the interests of the great body 
of lawful voters, it would often insure success to the cunning 
schemes of unscrupulous partisans. The authorities are, almost 
without exception, in favor of the doctrine that neither the omis- 
sion of the oath of officers of the election, nor any other less 
material variance from directory requirements of the statute, will 
warrant the rejection of the vote of a precinct. 3 

1 Nye's case, C. S. & J. 643. In the same case the court of appeals of 

2 Giddings v. Clark, Smith, 91. New York said: "The neglect of the 

3 The supreme court of New York, in officers of election to take any oath would 
the leading case, already cited, held that not have vitiated the election. It might 
the omission of the oath of office, by the have subjected those officers to an indict- 
inspectors, did not vitiate the election. ment, if the neglect was wilful. The 



319 

§ 374. When the constitution requires all officers, before enter- 
ing upon the duties of their respective offices, to take a prescribed 



acts of public officers, being in by color 
of an election, or appointment, are valid 
so far as the public is concerned. " People 
v. Cook, 14 Barb. 259. Same case, 4 Seld. 
67. See also Taylor v. Taylor, 10 Minn. 
107 ; Weeks v. Ellis, 2 Barb. 334 ; Whip- 
ley v. McCune, 10 Cal. 352 ; Thompson 
v. Ewing, 1 Brewst. 67 ; Wells v. Taylor, 
5 Mont. 202 ; Greenleaf v. Low, 4 Denio, 
168 ; Keyserv. McKisson, 2 Kawle, 139; 
Botts v. Jones, 1 Bart. 73 ; Wright v. 
Fuller, 1 id. 158; Blair v. Barrett, 1 
id. 313 ; Koontz v. Coffroth, 2 id. 144 ; 
Barnes v. Adams, 2 id. 764 ; Sheafe 
9). Tillman, 2 id. 912. In the case of 
Barnes v. Adams, the committee of elec- 
tions said: "The officers of election 
are chosen, of necessity, from among 
all classes of the -people ; they are num- 
bered, in every state, by thousands ; they 
are often men unaccustomed to the for- 
malities of legal proceedings. Omissions 
and mistakes, in the discharge of their 
ministerial duties, are almost inevitable. 
If this house shall establish the doctrine 
that an election is void because an officer 
thereof is not, in all respects, duly quali- 
fied, or because the same is not conducted 
strictly according to law, notwithstand- 
ing it may have been a fair and free 
election, the result will be very many 
contests ; and, what is worse, injustice 
will be done in many cases. It will en- 
able those who are so disposed to seize 
upon mere technicalities, in order to 
defeat the will of the majority." 

In the case of McFarland v. Culpepper, 
C. & H. 221, decided by the house of 
representatives of the tenth congress, 
the contestant's petition, which corre- 
sponded to the modern notice of contest, 
contained the allegation that, " the cer- . 
tificate of John Culpepper's election was 
fraudulently and illegally obtained, in 
direct violation of the laws and constitu- 
tion of the state of North Carolina." The 



committee reported that they found 
many irregularities and abuses alleged, 
and supported by numerous depositions, 
but, there being no law of congress pro- 
viding for taking testimony in contested 
election cases, they had excluded much 
of the proof ; that from the testimony, 
which was admitted, the inspectors and 
clerks of three of the five counties did 
not appear to have been sworn, and the 
votes of those counties ought to be re- 
jected. But they added that it would be 
improper to deprive these counties of 
representation on account of the fault of 
the officers of election, and recommended 
a new election. The house adopted their 
recommendation and declared the seat 
vacant ; and, before the close of the ses- 
sion, Culpepper was again elected, and 
took his seat. It seems to have been 
shown by proofs, which the committee 
did not feel at liberty to accept, that the 
election, in the three assailed counties, 
was not free from abuses, and yet the 
electors of those counties did not forfeit 
their votes, any more than did the elect- 
ors of the other two counties of the 
district. In the case of McFarland v. 
Purviance, C. & H. 131, the committee 
reported that the election officers of one 
of the counties had not only neglected, 
but actually refused, to take the oath of 
office, although the contestant had de- 
manded that they should take it, at the 
opening of the polls ; and, for that 
reason, they recommended that the 
election, in the county in question, 
should be set aside. But the house re- 
ferred this report to the committee of the 
whole, and a month later discharged the 
committee of the whole from its further 
consideration, and took no further action 
in the case. The contestee retained his 
seat until the expiration of the term. 

The case of Easton v. Scott, C. & H. 
172, which was debated by Webster, 



320 

oath, and a statute, creating an office, does not require the incum- 
bent to take the oath prescribed in the constitution, his acts will 



Calhoun, Kandolph, Pickering, Wright, 
Thomas, and Taylor, has been cited as 
an authority for the position that the 
failure of the officers of election to take 
the prescribed oath vitiated the election. 
It is not clear that the case will bear 
such a construction. It is true that the 
report of the committee contains the 
following statement : "Of the 3,647 votes 
above mentioned, there were given, in 
the township of Cote Sans Dessein, 23 
for John Scott and one for the petitioner. 
The votes of this township were unani- 
mously rejected by the committee, for a 
variety of causes, among which are the 
following : 1. The election was held 
viva voce. 2. But two persons acted as 
judges, and neither of them was sworn. 
3. But one person acted as clerk, and he 
was not sworn. 4. The votes were rejected 
by the justices whom the clerk took to 
his assistance, in making out the ab- 
stracts to be forwarded to the governor ; 
they were sent to the governor in an 
irregular manner ; and the paper called 
a return, appeared upon its face to be 
defective in many important particu- 
lars." But the committee did not decide 
that the failure of the judges and clerk 
to take the prescribed oath vitiated the 
precinct election. They decided that the 
facts of the case, taken all together, 
warranted the rejection of the poll. The 
committee found and reported the fol- 
lowing facts : that at Cote Saris Dessein, 
the election was held viva voce in viola- 
tion of the law ; that two persons acted 
as judges and one as clerk ; that none of 
these officers were sworn ; that the polls 
were, in violation of the law, opened at 
eleven, instead of eight, and closed at 
two instead of four; that one person, 
who declined to vote, was compelled to 
vote by the judges ; that the judges re- 
corded, in the poll-book, in favor of 
Scott, the votes of persons who did not 



vote, and were not in the township, on 
the day of the election ; that two of the 
persons reported, on the poll-book, as 
voting for Scott had not been in the ter- 
ritory eight months, although congress 
had prescribed a residence of twelve 
months, as a qualification for voting at 
that election ; that two other persons, 
who did not vote at all, were recorded 
as voting for Scott; that one person, 
who was a minor, was recorded as voting 
for Scott ; that the county canvassers 
had refused to count the vote of this 
precinct, and the majority for Easton, 
in the whole territory, exclusive of this 
precinct, was seven ; but that Scott pur- 
chased a copy of this precinct return, 
from the county clerk, and presented it 
to the governor, who canvassed the same, 
and found a majority of fifteen for Scott ; 
and gave him the credentials. The com- 
mittee recommended that the vote of 
Cote Sans Dessein should be excluded 
and the seat awarded to Easton. If their 
report had been adopted by the house, 
it would not have been justifiable to as- 
sume that, among the numerous consid- 
erations embraced therein, the single 
consideration that the officers of election 
were not sworn was decisive of the re- 
sult. But the report was not adopted. 
On motion of Mr. Webster it was recom- 
mitted; and subsequently the house 
adopted the following resolution: " He- 
solved, That the election, in the terri- 
tory of Missouri, has been illegally 
conducted, and the seat of the delegate 
from that territory is vacant. That the 
speaker inform the governor of that ter- 
ritory of the decision of this house, that 
a new election may be ordered." 

In the case of Draper v. Johnston, 
C. & H.712, the committee expressly held 
that the failure of the officers of election 
to take the oath vitiated the election. 
And in Otero v. Gallegos, 1 Bart. 177, 



321 

not be void, if he be eligible and take the oath required by the 
statute, although he do not take the oath prescribed in the con- 
stitution. 1 

§ 375. An officer de facto is one whose acts, though not those 
of a lawful officer, the law, upon principles of policy and justice, 
will hold valid, so far as they involve the interests of the public 
and third persons, where the duties of the office are exercised, 
without a legal appointment or election, under such circum- 
stances, of reputation or acquiescence, as are calculated to induce 
the people, without inquiry, to submit to or invoke his action, 
supposing him to be the officer he assumes to be ; or where, under 
color of a known and valid appointment or election, the officer has 
failed to conform to some precedent requirement, or condition, as 
to take an oath, give a bond, or the like ; or where the officer 
is ineligible, or there was a want of power to elect, or appoint, or 
some defect, or irregularity, in its exercise, and such ineligibility, 
want of power, or irregularity is unknown to the public ; or where 
the office is held under color of an election, or appointment, by, 
or pursuant to, a public unconstitutional law, before the law is 
adjudged to be unconstitutional. 2 The validity of an election 
is not affected by the disqualification of the officers who hold 
it. They are de facto officers ; their acts are valid as to third 
persons and cannot be impeached. 3 Precinct officers, if regularly 
appointed, without fraud, are de facto officers, although not 
freeholders, as required by law, and their return is not to be 
rejected. 4 The acts of an officer de facto, whether judicial or 
ministerial, are valid, so far as the rights of the public or third 
persons having an interest in such acts are concerned ; and neither 
the title of such an officer, nor the validity of his official acts, can 
be indirectly called in question, in a proceeding to which he is not 
a party. 5 

the committee only said : "Your commit- 2 State v. Carroll, 38 Conn. 449. But 

tee are not satisfied that the judges were see Bailey v. Fisher, 38 Iowa, 229. 

sworn and they refer the house to the 3 Wilson v. Peterson, 69 N. C. 113. 

uniform rule as heretofore acted upon by 4 Collins v. Huff, 63 Ga. 207. 

the house." 5 Plymouth v. Painter, 17 Conn. 585 ; 

1 Morgan v. Vance, 4 Bush, 323 ; Mar- Douglass v. Wickwire, 19 id. 489; 

bury ^.Madison, 1 Cranch, 163; United State V.Carroll, 38 id. 449; Abbe of 

States v. Le Baron, 19 How. 173 ; United Fountaine, Year Book, 1431 ; Knowles v. 

States v. Stewart, id. 794 ; Kice v. Com- Luce, Moore, 109 ; O'Brian v. Knivan, 

monwealth, 3 Bush, 14. Cro. Jac. 552 ; Dacres' case, 1 Leonard^ 

21 



322 

§ 376. Proof that an individual has acted notoriously as a public 
officer is prima facie evidence of his official character, without the 



288 ; Leak v. Howell, Cro. Eliz. 533 ; 
Harris v. Jays. id. 699 ; Knight v. Cor- 
poration, Luttw. 508; Parker v. Kett, 
12 Mod. 467 ; Rexv. Lisle, Andrew, 163; 
Kex v. Bedford Level, 6 East, 356 ; Mar- 
gate Pier v. Hannam, 3 B. & A. 226 ; 
Fowler v. Beebe. 9 Mass. 231 ; Parker v. 
Baker, 8 Paige, 428 ; Matlett v. Uncle 
Sam Co. 1 Nev. 188 ; Taylor v. Skrine, 
2 Brev. 516 ; People v. White, 24 Wend. 
520; People v. Kane. 23 id. 414; 
Carlton v. People, 10 Mich. 250 ; Cocke 
v Holsey, 16 Pet. 71 ; Commonwealth v. 
McCombs, 56 Penn. St. 436 ; Clark «. 
Commonwealth. 29 id. 129 ; McCall 
v. Byram M'g Co. 6 Conn. 428 ; Peo- 
ple v. Collins, 7 Johns. 549 ; Wilcox 
v. Smith, 5 Wend. 231 ; Brown v. Lunt, 
37 Me. 322; Mayor v. Tucker, 1 Daly, 
107; Pritchettfl People, 1 Gilman, 525; 
Kelley v. Story, 6 Heisk. 202 ; Bank v. 
Chester, 6 Hampt. 480 ; Douglas v. Neil, 
7 Heisk, 438 ; Green v. Burke, 23 Wend. 
490; People v. Stevens, 5 Hill, 630; 
People v. Hopson, 1 Den. 574 ; Commis- 
sioners v. McDaniel, 7 Jones (N. C), L. 
107 ; Aulanier v. Governor, 1 Tex. 653 ; 
People v. Ammons, 5 Gilm. 107 ; Taylor 
v. Taylor, 10 Minn 107 ; Baird v. Bank, 
11 S. & R. 414; County Court v. Sparks, 
10 Mo. 121 ; Saterlee v. San Francisco, 
23 Cal. 314 ; Lockhart v. Troy, 48 Ala. 
579 ; Weeks v. Ellis, 2 Barb. 320 ; Low v. 
Rice, 8 Johns, 409 ; Thompson v. Ewing, 
1 Brewst. 67 ; Leach v. Cassidy, 23 Ind. 
449 ; Greenleaf v. Low, 4 Denio, 168. 

There is a material difference between 
an officer de facto, with general duties to 
perform through a stated term of office, 
and a special court organized for a single 
trial. While a person exercising the 
general duties of an office, claiming a 
right thereto under a commission, or 
appointment, is an officer de facto, and 
his acts are generally valid, as to third 
persons, however irregular his appoint- 



ment, or qualification, may be, and al- 
though he may be personally liable to a 
party aggrieved for his official action ; 
a tribunal, as, for example, a board of 
aldermen, which can only become a 
court for a specific trial, and upon taking 
a prescribed oath, administered by an 
officer duly authorized, if sworn by an 
officer not authorized to administer the 
oath does not become a court ; its judg- 
ment is a nullity. Rice v. Commonwealth, 
3 Bush. 14 ; Tompert v. Lithgow, 1 Bush. 
176. 

The current of decisions, in respect to 
public officers appointed or elected, is 
that their acts are valid in regard to 
third persons, and cannot be questioned 
collaterally, although they fail to ob- 
serve the positive requirements of the 
law to give a bond, or take an oath be- 
fore entering upon the exercise of their 
offices. But these decisions are to be 
restricted to those who hold office under 
some degree of notoriety, or are en- 
gaged in the continuous discharge of 
their official duties, or are in possession 
of a place which has the character of a 
public office. Therefore, the acts of 
merchant appraisers, called in by the 
collector, under the second section of 
the act of March 2, 1799, performed 
without the sanction of an oath, are ir- 
regular and void. Vaccari v. Maxwell, 
3 Blatchf. 368. See also Greeley <o. 
Thompson, 10 How. 225 ; Nason v. Dill- 
ingham, 15 Mass. 170 ; Bucknam v. Bug- 
gies, id. 180 ; Plymouth v. Painter, 17 
Conn. 585 ; People v. Stevens, 5 Hill, 
616 ; People v. Hopson, 1 Denio, 574 ; 
People v. Covert, 1 Hill, 675 ; Weeks v. 
Ellis, 2 Barb. 324 ; Margate Pier Co. v. 
Hannam, 3 B. & A. 226. 

When the commission, under which 
the officer assumes to act, shows, upon 
its face, that it emanates from an au- 
thority having no power to confer it, it 



323 

production of his appointment. This exception to the rule requir- 
ing the best evidence to be given is founded upon the strong 
presumption raised by the exercise of a public office that the 
appointment to it is valid, and is made for the reason that it would 
be attended with general inconvenience to require full and strict 
proof of the appointment, or election, of public officers. 1 

§ 377. If there has been a fair vote and an honest count, the 
election is not to be declared void because the officers conducting 
it were not duly chosen, or sworn, or qualified. 2 Under statutes 
requiring judges of election to be chosen "by a majority of the 
voters present and voting," if a person, who is a resident and voter 
of the district, without a formal choice by the voters, act as judge, 
and return the results, with no objection on the part of the voters, 
the chancellor will not declare the election void, or restrain the 
collection of a tax authorized by the vote of the electors. 3 Under 
a statute making it essential to the validity of a city ordinance 
that it shall receive the votes of a majority of all the members 
elected to the board of aldermen, an ordinance, adopted by the 
votes of only four members of a board of eight, of whom one, 
though duly elected, certified, and sworn, was ineligible, by reason 
of alienage, was held to be void. The ineligible alderman was an 
officer de facto. 41 Disqualification for office, resulting from the 

is void ; but when it is regular ou its into the office or not. There must be at 
face, and emanates from a legal source, least a presumption that they are right- 
and a reference to facts not disclosed by fully in office. Such presumption cannot 
the commission is necessary to show exist, after the decision of a competent 
that the power of appointment has been tribunal to the contrary. To permit 
illegally exercised, the appointment is persons, adjudged by a competent tri- 
voidable only. In the former case all the bunal to be usurpers, to exercise the 
acts of the officer, performed under the powers of the office usurped, is to de- 
commission, are void for every purpose, prive the judgment of ouster of all force 
while in the latter they are valid as to and effect. Bailroad v. Bank, 60 Barb, 
the public and the third persons. 234. 

Thompson v. State, 21 Ala. 48. x Cotton v. Beardsley, 18 Barb. 29 ; 
When by a judgment of the court of Berryman v. Wise. 4 T. B. 366 ; Wilcox 
last resort, in a direct proceeding to v. Smith, 5 Wend. 231 ; United States v. 
determine the title of officers de facto, Beyburn, 6 Pet. 352 ; Bex v. Gordon, 2 
it has been adjudged that they have no Leach, 581 ; Bryan v. Walton, 14 Ga. 
rightful title to the office, but are mere 185; Allen v. State, 21 id. 217 ; Green- 
usurpers, then, at least as to all who leaf's Ev. ss. 83, 91, 92. 
have notice of such proceeding and judg- 2 Wells v. Taylor, 5 Mont. 202. 
ment, the color of authority has ceased, 3 Trustees v. Garvey, 80 Ky. 159. 
whether any one else has been inducted 4 Saterlee v. San Francisco, 23 Cal. 314. 



324: 

fact of holding office under a state government and afterwards 
participating in rebellion against the United States, will not render 
void the acts of officers duly appointed under a rightful govern- 
ment. They will be officers de facto, until their titles to the offices 
they hold are adjudged invalid. 1 But in England, where the 
mayor, who presides at the election of a new mayor, is only mayor 
de facto and not de jure, and is subsequently removed by judg- 
ment of ouster, the election of the new mayor is void, and the 
court will grant a mandamus for the election of another mayor, 
although a quo warranto be pending against the mayor in office. 2 
§ 378. When an officer justifies an act complained of, purporting 
to be done in his official capacity, the general rule of law is that 
it is necessary that he should aver and prove, in his defence, not 
only that he was an acting officer, but that he was an officer in truth 
and right, duly commissioned to act as such, while, as to all others, 
it is sufficient to aver and prove that he was acting as such officer. 
And the reason of the rule is that the officer himself is bound to 
know whether he is legally an officer, and, if he attempts to execute 
the duties of an officer, without authority, he acts at his peril. But, 
so far as the rights of third persons or the public are concerned, 
it is sufficient that the officer is acting in his official capacity, under 
color of title. 3 But it has been held, by a divided court, in the 
fourth judicial district of New York, that while, in an action against 
a person for an act which he had no right to perform unless an 
officer, he must show, by prima facie proof, that he was an officer 
de jure, proof of acting as such, under color of authority, and of 
reputation, is admissible evidence for that purpose. In that case 
the court said that the uniform practice had been to admit proof 
that persons had been reputed to be, and had acted as, officers, in 
cases where they were sued for their official acts and sought to 
defend by showing their official character. 4 

1 Lockhart v. Troy, 48 Ala. 579. People v. Hopson, 1 Den. 579 ; Bentley 

2 Eex«. Bridgewater, 3 Doug. 379. V. Phelps, 27 Barb. 527; Smith v. De 

3 Schlencker v. Risley, 3 Scam. 483; Bouchin, 2 Strange, 994 ; Pekin v. Proc- 

Burke v. Elliott, 4 Ired. 355 ; Riddle v. tor, 2 Wils, 383 ; Venable v. Curd, 39 

Bedford, 7 S. & R. 386; Cumming v. Term. 582; Taylors Skaine, 2 S. C. 696 ; 

Clark, 15 Verm. 653 ; Plymouth v. Paint- Pearce v. Hawkins, 2 Swan (Tenn.), 87 ; 

er, 17 Conn. 589 ; Fowler v. Beebe, 9 Robinson v. Harland, 1 Scam. 237 ; Peo- 

Mass. 231 ; Green v. Burke, 23 Wend. pie v. Collins, 7 Johns. 549. 

502; People v. White, 24 id. 539; 4 Cotton v. Beardsley, 38 Barb. 29. Pot- 



325 

§ 379. When the statute requires the officers of election to be 
divided equally between two political parties, and provides a 
penalty for the violation of the statute, but does not declare that 
the election shall be set aside, in case of such violation, a failure 
to divide the officers, in compliance with the requirements of the 
statute, will not, of itself, avoid the election. The officers will be 
officers de facto. The Kentucky statute of March 15, 1862, was 
designed to prevent the recognition of the secession party, then 
organized' in Kentucky, as one of the political parties from which 
to. select the officers of election. But officers, appointed by com- 
petent authority, having all the required qualifications, except that 
of loyalty during the rebellion, would certainly be officers de facto, 
clothed with colorable authority, and being such, and not mere 
usurpers, their acts would not, in the absence of fraud, be void 
as to third parties. x 

§ 380. The reason of public policy, upon which is based the rule 
that the acts of an officer de facto are not to be called in question 
collaterally, but are valid as to third persons, may apply even to 
the case where such officer is a usurper and intruder. This prin- 
ciple has been applied, in England, to the most important office. 
After Edward IV obtained the crown, the kings of the line of 
Lancaster, who had preceded him, were spoken of as " nuper de 
facto et non de jure reges Anglice ;" but, although Henry VI had 
been declared a usurper, by act of parliament, attempts against 
his authority (not having been in aid of the rightful king) were 
capitally punished. Third persons, from the nature of the case, 
cannot always investigate the rights of one assuming to hold an 
important office, even so far as to see that he has color of title to 
it, by virtue of some appointment, or election. If they see him 
publicly exercising its authority, with the general acquiescence of 
the people, they are entitled to treat him as such officer, and should 
not be subjected to the danger of having his acts collaterally called 
in question. Eor an officer de facto is one who has the reputation 
of being the officer he assumes to be and yet is not a good officer 

ter J. dissented. The following cases 2 M. &W. 206; Wilcox v. Smith. 5 Wend, 

were cited in support of the ruling of the 231; Sawyer v. Steele, 3 Wash. C. C. 

court: Potter v. Luther, 3 Johns. 431; 464; Doe v. Barnes, 8 Q. B. 1037; But- 

McCoy v. Curtice, 9 Wend. 17 ; Kex v. ler v Ford, 1 Cr. & M. 662 ; Greenl. Ev. 

Gordon, 2 Leach, 581 ; Berryman v. s. 92. 
Wise, 4 T. K. 366; McGahey^. Alston, 1 Barnes v. Adams, 2 Bart. 760. 



326 

in point of law. 1 " No election of any person into any corporate 
office shall be liable to be questioned, by reason of any defect in 
the title, or want of title, of the person before whom such election 
may have been had, provided that the person, before whom such 
election shall be had, shall be then in the actual possession of, or 
acting in, the office, giving the right to preside at such election." 2 
" No burgess-roll shall be liable to be questioned, by reason of 
any defect of title, or want of title, of the mayor, or assessors, by 
whom the same shall have been revised, or any or either of them, 
provided that he or they shall have been in the actual possession 
and exercise of the office of mayor, or assessor, as the case may 
be." 3 But an election, held by mere intruders, without title, or 
color of title, may be disregarded. 4 

§ 381. A statutory requirement that " a justice of the peace must 
be one of the persons presiding at a constable's election, if there 
be one in commission to be had, and he is not a candidate at the 
same election," 5 is mandatory, and the failure of a justice of the 
peace, so qualified, to preside, during the whole, or a part, of the 
day, will invalidate the election, and a vacancy will thereupon 
occur, under the statute, 6 to be filled by appointment of the justices 
of the peace of the district. 7 Under a statute requiring an election 
to be held by three judges and two clerks, the election, if held by 
one person acting in the capacity of moderator of a town meeting, 
and one clerk, will be void. 8 At a town meeting a person was 
chosen moderator, without the use of the check-list, in violation 
of law ; persons were voted for as selectmen, declared elected and 
sworn, and, after the transaction of other business, it was voted to 
adjourn for a week, and the moderator declared the meeting ad- 
journed. At the adjourned meeting it was voted that, inasmuch 
as the omission of the check-list had rendered the election of the 
moderator of doubtful legality, another choice of moderator should 
be made. In the second election of moderator, the check-list was 
used, according to law ; and the voters then chose other persons 
as selectmen. On an information in the nature of a quo warranto, 

J Bird v. Merrick, L. & E. 115 ; Kex 5 Code Ga. s. 1328. 

v. Bedford Level, 6 East, 356. ° Id. s. 465. 

2 1 Vict. c. 78, s. 1. 7 Franklin v. Kaufman, 65 Ga. 260. 

3 Id. s. 5. "Lippincott v. Pana, 92 111. 24. 

4 Thompson v. Ewing, 1 Brewst. 67. 



327 

against the persons chosen at the first meeting, it was held that 
they were not entitled to the office. 1 Where the law required the 
board of inspectors to consist of three persons, and it actually 
consisted of only two, it was held, by the committee, that the vote 
of the precinct could not be counted. 2 

§ 382. Under the provisions of the military election law of 
Pennsylvania, which applied to all qualified electors of the com- 
monwealth who were in any actual military service, under a 
requisition from the president of the United States, or by the 
authority of the commonwealth, it was held that the entire volun- 
teer army was in the military service, under the president's requisi- 
tion, and that volunteer officers, appointed by the president, were 
as much a part of that army as those appointed by state authority ; 
but that the regular army was not in the military service under 
the president's requisition, and an election, at which two non- 
commissioned officers of the regular army acted as judges, was 
illegal and void. 3 By the constitution of Ohio United States 
citizenship was made one of the qualifications of electors, and it 
was provided that no person should be elected, or appointed, 
to any office in the state, unless he possessed the qualifications of 
an elector ; and, by the statute, it was provided that three persons, 
having the qualifications of electors, should be judges of election. 
It was held, by a majority of the committee, that, under the act 
of congress of March 3, 1865, a deserter ceased to be a citizen 
of the United States and was, therefore, ineligible to the office 
of judge of election ; and that, where one of the three judges was 
a deserter, the return of the board was, for that reason, invalid 
and must be rejected. They cited the case of Howard v. Cooper. 4 
The minority were of the opinion that the case cited had no applica- 
bility, because, in that case, only two persons pretended to act 
as judges, and there was, therefore, no compliance with the law ; 
but in the case under consideration there was an actual compliance 
with the law, and, even if the judge had been, as he was not, 
ineligible, yet he was a judge de facto, and, no fraud being alleged, 
or shown, the election was clearly valid. 5 

Attorney-General v. Simonds, 111 4 Howard v. Cooper, 1 Bart. 282. 

Mass. 256. 5 Delano v. Morgan, 2 id. Ib8. The 

2 Howard v. Cooper, 1 Bart. 275. report of the committee was sustained 

3 Fuller v. Dawson, 2 id. 126. in the house, by a vote of 80 to 38. 



328 

§ 383. A statute of Kentucky contained these provisions : " The 
justices of the county court shall, at their court next preced- 
ing the first Monday in August, in every year, appoint two of their 
own body as judges of the election then next ensuing, and also a 
proper person to act as clerk. And, in case the county court shall 
fail to make such appointments, or the persons appointed, or any 
of them, fail to attend, the sheriff shall, immediately preceding 
every election, appoint proper persons to act in their stead. The 
sheriff, or other presiding officer, shall, on the day of every elec- 
tion, open the polls by ten o'clock in the morning. The judges of 
election and clerk, before they proceed to the execution of their 
duty, shall take the oath prescribed by the constitution. They 
shall attend to the receiving of the votes until the election is com- 
pleted, and a fair statement make of the whole amount thereof. 
The persons entitled to suffrage shall, in the presence of said judges 
and sheriff, vote personally and publicly, viva voce." The com- 
mittee held that an appointment, made by the sheriff before ten 
o'clock in the forenoon, was illegal; and that, if the regularly 
appointed judges appeared, at ten o'clock, and took the place of 
the sheriff's appointee, all votes previously cast were to be 
rejected, for these two officers could not both be legal judges, 
although it might be otherwise, if the sheriff's appointee had con- 
tinued to act and to attend to receiving the votes until the election 
was completed, and a fair statement made of the whole amount 
thereof. Yotes received by the two judges, in the absence of the 
sheriff, were held to be illegal. 1 Under the statute of Virginia, 
requiring the officer conducting the election to appoint writers, to 
be sworn by him to take the poll faithfully and impartially, and 
requiring him to deliver a poll-book to each writer, who should 
record therein, among other things, the names of the voters, the 
officer could not act alone in the double capacity of superintendent 
and clerk ; and the votes recorded by him, without the presence 
or aid of such clerk, or writer, were to be rejected. 2 

1 Letcher v. Moore, C. & H. 715. The 2 Draper v. Johnston, C. & H. 702. 

house overruled the committee. 



CHAPTER XVIII. 



PRELIMINARY PROCEEDINGS. 



Secs. Secs. 



1. Proclamation; notice . 384-397 

2. Petition of electors . . 398-402 

3. Publication . . .. 403-406 

4. Warrant to conform to law 407, 408 



5. Vote to conform to law, procla- 

mation, notice, and warrant, 409-420 

6. Writs ■ . . . . 421-424 

7. Return . . . .425 



§ 384. The notice or proclamation, when required by law, con- 
stitutes one of the first official acts in the proceedings of an 
election, whether for the choice of public officers, or for the deter- 
mination of questions submitted to a popular vote. The duty of 
issuing the notice, or proclamation, is imposed on different officers, 
in different states ; and the time, place, and manner of issuing the 
proclamation, and giving the notice, are regulated by state laws. 
The time of holding an election, whether general or special, must 
be authoritatively designated in advance, either by law, or by some 
means which the law has prescribed ; otherwise the election is held 
without authority, and is ineffectual for any purpose. 1 An elec- 
tion, the time and place for which are not prescribed by statute, is 
void if ordered by a person or tribunal not authorized to order it, 
as by the mayor instead of the mayor and common council, or by 
the county court instead of the county supervisors, or by the town 
supervisor instead of the town clerk. 2 And it is not in the power 
of the persons, or officers, legally authorized to order the election, 
to ratify it by their subsequent acts, as by the canvass of the votes, 
and the adoption of a resolution approving and ratifying the call- 
ing of the election. 

If the constitution, or a valid statute, prescribe the time, 
place, and manner for the election of a particular officer, or for 
the determination of a specific question by the qualified voters, 
and a statute require certain officers to give notice of the elec- 
tion, such statutory requirement will be merely directory, and 
neither irregularity in the notice, nor an absolute failure to give 

1 Kenfield v. Irwin, 52 Cal. 164. County v. Cook, 38 111. 44 ; Force v. Ba- 

2 Stephens v. People, 89 111. 337; Clark tavia, 61 id. 99. 
v. Supervisors, 27 id. 310 ; Marshall 

329 



330 

the notice, will invalidate the election. Where, by the express 
provision of the statute, the election is to be held after procla- 
mation, or notice, announcing the time, or the place, or both, 
and no such proclamation has been made, or notice given, the 
election is void. But where both the time and the place of an 
election are prescribed by law, every voter has a right to take 
notice of the law, and to deposit his ballot, at the time and place 
appointed, notwithstanding the officer, whose duty it is to give 
notice of the election, has failed in that duty. The right to hold the 
election, in such a case, is derived from the law, and not from the 
notice. And this rule will apply to an election to fill a vacancy, if 
the vacancy shall have occurred long enough before the election 
to have become generally known, and if it shall be in fact generally 
known. A general election, fixed by law, is not vitiated by a 
failure of the officer to make the publication required by law. x 

§ 385. The rule that elections, for which the time and place 
are fixed by law, are not vitiated by defective notice, or even 
by want of notice, does not apply to special elections, for which 
the law does not fix the time and place, but commits to a munic- 
ipal body the duty of fixing the time and place, and of giving 
notice thereof. In the case of general elections, when time and 
place are fixed by law, the requirement of notice is directory ; in 
the case of special elections, when time and place are not fixed 
by law, it is mandatory ; and when the notice fails to state the 
place, at which the election is to be held, the election is invalid. 3 
Where the governor is required by law to issue his proclamation 
for special elections, to fill vacancies occasioned by death, or 
resignation, the proclamation is essential to the validity of the 
election. 3 When a question is submitted to the qualified voters 
of a county, and of each magisterial district, and it is made the 
duty of the sheriff to post notices of the election, at every voting 

1 Carson v. McPhetridge, 15 Ind. 327 ; v. Smith, 10 Iowa, 212 ; Jones v. Gridley, 
Light v. State, 14 Kan. 489 ; People v. 2 Kan. 584; State v. Orris. 20 Wis. 235 ; 
Cow es, 13 N. Y. 350 ; People v. Porter, State v. Goetz, 22 id. 363 ; People V. 
6 Cal. 26 ; People v. Weller, 11 id. 49 ; Martin, 12 Cal. 409 ; People v. Rose- 
People v. Brenham, 3 id. 477 ; Cooley borough, 14 id. 180. 
Const. Lim. 603 ; Dickey v. Hurlburt, 5 2 Morgan v. Gloucester City, 44 N. J. 
Cal. 343 ; State v. Jones, 19 Ind. 356 ; 137. 

People v. Hartwell, 12 Mich. 508 ; City of 3 McCune v. Weller, 11 Cal. 49 ; People 

Lafayette v. State, 29 Ind. 218 ; Dishon v. Martin, 12 id. 409. 



331 

place in the county, within a prescribed period of time preceding 
the election, the failure to post the notice, in pursuance of the 
statute, in any magisterial district, will invalidate the election in 
such district. 1 In Ohio the failure of the sheriff to give notice of 
an election, to fill a vacancy in the office of probate judge, to be 
held at the first annual election occurring more than thirty days 
after the occurrence of a vacancy, is not necessarily fatal to the 
validity of the election. 2 But when, in case of such election, no 
notice is given by official proclamation, or otherwise, and the 
great body of legal electors are misled and fail to take part in the 
election, it is void. 3 

§ 386. Under statutes providing that whenever a vacancy shall 
occur, in the office of county judge, " the governor shall fill the 
same, by granting a commission, which shall expire at the next 
general election by the people, at which election such officers shall 
be chosen for the balance of the unexpired term ;" 4 and that, " when- 
ever a special election is necessary to fill a vacancy in any office, 
which is to be filled by the vote of the qualified electors of the state, 
or of the district, the governor shall issue his proclamation, ordering 
such election in like manner as is provided in regard to general elec- 
tions, and designating also the time at which it is to be held ; and 
the board of supervisors of each county, in which such election 
is to be held, shall give notice thereof as required in this act," 5 it was 
held, by the district court, that an election, ordered by the board 
of supervisors, to fill a vacancy in the office of county judge occa- 
sioned by the resignation of the incumbent, without the proclama- 
tion of the governor, was invalid ; that the law gave notice of a 
vacancy occasioned by the expiration of the term of the incumbent, 
but required the governor to give notice, by proclamation, of vacan- 
cies occasioned by death, resignation, or removal. 6 

§ 387. The statutes of California contained the following clauses : 
" In case of a vacancy, from any cause, in the office of the district 
judge, the governor shall fill the same, by granting a commission, 
which shall continue until the election and qualification of a judge 
in his place. A judge, to fill the vacancy, shall be chosen at the 

1 Haddox v. County of Clarke, 79 Va. 4 Stat. Cal. 1853, p. 246, s. 43. 
677. B Id. 1855, p. 160, s. 3. 

2 Scarff v. Foster, 15 Ohio St. 137. 6 People v. Porter, 6 Cal. 26. See also 

3 lb. People v. Martin, 12 id. 409. 



332 

first general election subsequent to the occurrence of the vacancy." 1 
" Whenever any vacancy shall occur, in the office of justice of the 
supreme court, or district judge, or county judge, or superintendent 
of public instruction, the governor shall fill the same, by granting 
a commission, which shall expire at the next general election by 
the people, at which election such officers shall be chosen for the 
balance of the unexpired term." 2 " It shall be the duty of the gov- 
ernor, at least thirty days before any general election, to issue his 
proclamation, designating the offices to be filled at such election, 
and to transmit a copy thereof to the board of supervisors of each 
county of the state." 3 A district judge, whose term was to expire 
in January, 1859, resigned in 1857, and an appointment was made 
by the governor. No proclamation for filling the vacancy, at the 
general election held in September, 1858, was issued by the gov- 
ernor. But an election was held, and the candidate, who received 
a majority of the votes, having obtained a certificate of election, 
applied to the governor for a commission, which was refused. He 
thereupon applied for a mandamus. It was insisted that there 
was no legal election, because no proclamation had been made by 
the governor. In reply it was said that an election, for the office 
in question, under the general law, did not depend, for its validity, 
upon any act of the governor, but rested upon the constitutional 
right of the voters to elect the incumbent, and upon the general 
statute prescribing the time, place, and manner of the election. 
The supreme court of California held, upon a review of the authori- 
ties, 4 that, while the electors would be presumed to know the law 
and, consequently, to know at what period the regular term of the 
officers to be voted for expired, and to be prepared to act accord- 
ingly, and, therefore, the failure of the governor to make proclama- 
tion of an election, for a regular, or full, term, might not vitiate 
the election, it was necessary that the electors should be, by the 
governor's proclamation, officially notified of a vacancy occasioned 
by death, resignation, or removal, and called upon to fill it ; that 

1 Wood's Cal. Dig. 150. People v. Cowles, 3 Ker. 350 ; People v. 

2 Id. 561. Brenhani, 3 Cal. 447; People v. Porter, 

3 Id. 375. 6 id. 26; Cavis v. Robertson. 9 N. H. 

4 Bex v. Foxdale, 1 Burr. 445 ; Striker 524 ; Northwood v. Barrington, id. 369 ; 
«. Kelley, 7 Hill, 9 ; People v. Peck, 11 People v. Whiteside, 23 Wend. 9 ; Gil- 
Wend. 605 ; People v. Runkel, 9 Johns. more v. Holt, 4 Pick. 258 ; Tucker v. 
158 ; Kodelbaugh v. Sanks, 2 Watts, 9 ; Aiken, 7 N. H. 113. 



333 

the apprehended evils of an extension of the executive power to 
fill public offices, in cases of vacancy, by withholding proclama- 
tions for elections by the people, were offset by the evils of 
connivance and fraud, whereby vacancies, resulting from resigna- 
tion, death, or removal, could be concealed from the mass of the 
electors, and filled by the votes of a few ; and it was decided that 
the election held to fill the vacancy, without a proclamation by 
the governor, was void. 1 

§ 388. Under a statute declaring that " every town meeting shall 
be held in pursuance of a warrant, under the hands of the select- 
men, directed to the constables, or some other persons appointed 
by the selectmen for that purpose, who shall forthwith notify such 
meeting, in the manner prescribed by the by-laws, or a vote of the 
town," 2 a notice to the inhabitants of a town, of the meeting for 
the annual state election, called upon them to meet on a certain 
day, at a designated place, " to vote for government officers ;" it 
was signed by a majority of the selectmen, but without the addition 
of the name of their office to their signatures ; it was not directed 
to, nor served by, a constable, or other person appointed by the 
selectmen for that purpose ; but it was posted more than seven 
days before the day of the election, in a public place, according 
to the usual custom of the town, there being no by-law, or vote of 
the town, prescribing the mode of serving warrants for town meet- 
ings. All but eight of the registered voters of the town were 
present, at the meeting, and all but one of those present voted 
for county commissioner. Of the eight who were not present 
five had actual notice of the time and place of the meeting, and 
also notice that a county commissioner was to be voted for, two 
had been at sea more than two weeks prior to the meeting, and 
one was confined to his bed by sickness. One of the candidates 
for county commissioner had a plurality of eight votes, in all the 
towns of the county, including the town in question. It was held, 
by the supreme court of the state, upon an information in the 
nature of a quo warranto, that the election, in the town in question, 
was valid ; and that the defendant was duly elected to the office 
of county commissioner. 3 

§ 389. Where there was a usage to give fourteen days' notice 

1 People v. Weller, 11 Cal. 49. a Commonwealth v. Smith, 132 Mass. 

2 Gen. Stat. Mass. 1860, c. 18, s. 21. 289. 



334 

of a town meeting, but such notice of the election of a repre- 
sentative was rendered impossible, by the fact that the meeting, 
for the election of representative, was required, by the state con- 
stitution, to be held on the second Monday in November, and, 
failing an election, to be adjourned to the next day, and then, 
failing an election, another meeting was to be held on the fourth 
Monday in November, it was held that eleven days' notice, being 
all the notice possible, was sufficient. 1 When the notice of the 
election is irregularly signed and posted, but the meeting is fairly 
conducted, and no voter is deprived of any right, or fails to attend 
the polls, by reason of the irregularity, it will not affect the validity 
of the election. 3 The validity of bonds issued by a town, in aid 
of a railroad, does not depend upon the existence of a record show- 
ing the authority of the clerk to issue a notice for the election, or 
the fact of the notice. The rights of the bondholders do not 
depend upon the performance of this duty, by the clerk, but upon 
the fact of a substantial compliance with the requirements of the 
law authorizing the election. 3 

§ 390. A proclamation to the electors to fill, at a general election, 
all offices about to become vacant, by the expiration of their terms, 
is not, in fact, or in law, a proclamation of a vacancy occasioned 
by death, resignation, or removal, nor of an election to fill such 
vacancy. 4 If the election proclamation inform the voters that a 
vacancy has occurred, in an office, and notify them to meet, in 
their respective districts, on the day of the general election, for 
the purpose of electing an officer, for the unexpired term, it will 
be sufficient, though it fail to designate the election as a special 
election. 5 A statutory requirement that the proclamation of the 
result, of an indecisive election, and of the time of a second elec- 
tion, should be either written or printed, and posted up in, at 
least, two places in each township, was held, by the supreme 
court of Kansas, to be mandatory, and an election, held without 
such proclamation, was declared void, on the ground that a statute, 
regulating the proceedings of officers of election, is not to be re- 
garded as directory, when there is anything in the statute showing 
that the legislature intended it to be mandatory, and that the pro- 

1 Haws v. Darling, L. & R. 18. 4 People v. Rosborough, 14 Cal. 181. 

2 Hillman ©. Flanders, id. 338. 5 Tillson v. Ford, 53 id. 701. 

3 Railway Co. v. Town, 104 111. 339. 



335 

visions of the act in question showed that such was the legislative 
intent. 1 A statute of Iowa contained the following provision : 
" The trustees of Washington township shall cause a vote to be 
taken on the acceptance of this charter, in the manner in which 
township elections are now called and holden. * The forego- 
ing election shall be held at the court house, in Washington 
county, on the third Monday of February, 1857." 3 It was held 
that an election had, without the notice required by law in cases 
of township elections, was illegal and void. 3 The refusal of the 
selectmen of a town to admit the voters of a plantation, which 
had been annexed to it by statute, to act in town affairs, at the 
annual town meeting, and to call another town meeting for the 
purpose, was held sufficient to authorize the calling of a town 
meeting, by a justice of the peace, and the election of other 
selectmen and town officers. 4 

§ 391. The state constitution contained the following provision : 
" No act shall be revived, or re-enacted, by mere reference to the 
title thereof; nor shall any act be amended, by providing that 
designated words thereof shall be struck out, and others inserted 
in lieu thereof; but, in every such case, the act revived, or re-en- 
acted, or the act, or part of act, amended, shall be set forth and 
published at length, as if it were an original act or provision." 5 
It was provided by statute as follows : " If any two, or more, per- 
sons have an equal number of votes for, * circuit attorney, * 
and a higher number than any other person, the governor, in such 
case, shall issue his proclamation, giving notice of such fact, and 
that an election will be held." 6 "If there shall be a tie of the votes 
given for any two of the candidates, except in cases otherwise 
provided by law, the clerk, or justices, casting up the number of 
votes, or a majority of them, shall issue their order to the sheriff 
of the county, where the same may occur, directing him, or them, 
to issue his proclamation for holding an election." 7 While the 
foregoing constitutional and statutory provisions were in force, an 
act was passed abolishing the office of circuit attorney, except in 
a single county, and providing as follows : " From and after the 



1 Jones v. State, 1 Kan. 273. 

2 Laws Iowa, 1856-7, '227. 

3 State v. Young, 4 Iowa, 461. 

4 Adams' case, C. S. & J. 13. 



5 Const. Mo. 1865, art. 4, s. 25. 

6 Wag. Mo. Stat. p. 570. 

7 Id. p. 572. 



336 

first day of January, 1873, whenever the words circuit attorney, 
or county attorney, shall appear, in any of the statutes of this 
state, the same shall be taken and understood to mean prosecuting 
attorney." 1 It was decided, by the supreme court of the state, 
that, in the case of a tie vote, in the election of a prosecuting 
attorney, the governor, and not the sheriff, was the proper officer 
to order a new election. 2 

§ 392. In the state of Kansas a question arose, whether, at a 
particular election, two justices of the. peace were chosen, or only 
one. The time for holding elections for justices of the peace, 
in cities of the second class, was fixed, by law, on the first Tues- 
day of April, in each alternate year; but the statute did not indi- 
cate whether the elections were to be held in the odd-numbered, 
or in the even-numbered, years. Nor were the years, within which 
the terms of office were to commence, prescribed. The times of 
the elections, and the commencement of the terms of office, could 
only be ascertained by referring to the times of the first elections. 
The law required the mayor to issue a proclamation giving at least 
ten days' notice of each election, and announcing the offices to be 
filled. When a mayor, before an election at which two justices 
of the peace were to be elected, issued a proclamation, announ- 
cing that one justice only was to be elected, and the electors 
received no other sufficient notice that two justices were to be 
elected, but believed that only one was to be chosen and voted for 
only one, it was held that only one justice was elected, although 
several candidates received votes for the office. 3 

§ 393. Where it was required that notices of town meetings 
should be posted at the town-house, on a specified street, posting 
at the " town-house " was held sufficient, it not being shown that 
more than one town-house existed. 4 Under a statute requiring 
town meetings to be notified, by posting up an attested copy of the 
warrant, 5 "in some public and conspicuous place," in the town, a 
defendant, in an action of trespass, cannot justify, as an officer, 
unless the place, in which the notice was posted, was conspicuous, as 
well as public. Unless the place, in which the notice was posted, 
was both public and conspicuous, no officer could have been 

1 Stat. Mo. Mch. 9, 1872. 4 State v. Beeman, 35 Me. 242. 

2 State v. Geiger, 65 Mo. 306. B Rev. Stat. Me. c. 5, s. 6. 

3 Wood v. Bartling, 16 Kan. 109. 



337 

legally chosen, at the town meeting. 1 In an action against a town, 
for the recovery of a soldier's bounty, authorized by a town meet- 
ing, it Avas * held that, although the selectmen, who called the 
meeting, had been chosen at a previous town meeting which was 
irregular, by reason of a defect in the constable's return upon the 
warrant, which recited that true copies, instead of attested copies, 
of the notices had been posted, they were nevertheless officers de 
facto, and, as such, had a right to call other town meetings, dur- 
ing their official term ; and that the question of the validity of the 
election of the selectmen, who called the meeting which authorized 
the payment of the bounty, was not open to the town when it 
appeared that they were officers de facto, and that the meeting 
was otherwise legal. 3 

§ 394. Statutory notice of an election was held to be dispensed 
with, when the statute was so amended as to require the election 
of an officer not previously provided for, but the amendment went 
into effect too late to give the statutory notice before the election. 3 
In the absence of a statutory requirement to that effect, a date is 
not essential to the validity of a notice of election. 4 An election 
will not be invalidated by the omission of some duty, by an 
officer charged with giving notice thereof, when such election has 
been duly ordered and held. 5 An election is not invalidated by 
ignorance of the enactment of the law providing for it. 6 Elections 
are not to be set aside, on account of the meagreness of the vote, 
without distinct and circumstantial allegations and proof of error, 
fraud, violence, or illegality, affecting the result. 7 

§ 395. Under a statute empowering the president and trustees 
of a town to give notice of an election, to determine whether the 
town shall subscribe to the capital stock of a railway company, a 
notice, given by the town clerk, in obedience to the order of the 
president and trustees, is valid ; but a notice given by the clerk, 
without such order, is illegal and void. 8 An election, to determine 
whether a municipality will subscribe to the capital stock of a 
railroad company, and issue its bonds in payment of the sub- 

1 Bearce v. Fosset, 34 Me. 575. 6 City of Lafayette v. The State, 69 

2 Cushing v. Frankfort, 57 id. 541. Ind. 218. 

3 Powell v. Common Council, 51 Mich. 7 Augustin v. Eggleston, 12 La. An. 
129. 366. 

4 Braley v. Dickinson, 48 Verm. 599. 8 Kailway Co. v. Town, 104111. 339. 

& Dishon v. Smith, 10 Iowa, 212. 

22 



338 

scription, can be ordered only by the officers designated by law. 
When ordered by other persons it is void ; bonds issued, in pur- 
suance of such an election, are void ; and taxes, levied for their 
payment, are illegal, and their collection may be enjoined. 1 Under 
a statutory provision that " in case the selectmen unreasonably 
refuse to call a meeting, any ten, or more, legal voters therein 
may apply to a justice of the peace in the county, who is hereby 
authorized to issue his warrant for calling such meeting," 2 a town 
meeting, called by a justice of the peace, without an unreasonable 
refusal, by the selectmen, is illegal; and if a majority of the 
selectmen were never requested to call the meeting, they could not 
have unreasonably refused to call it. 3 Under a statute requiring 
the notice of election to be given by the board of supervisors of 
a town, it may be given by order of the board, signed only by 
their clerk. 4 Where a town meeting was called, without authority, 
by the district clerk, the notices were not posted in the manner, 
or for the time, prescribed by law, and the hour for the meeting 
was not fixed in the warrant, it was held that the meeting was 
illegal, that a vote to raise money to build a school house was 
void, and that a tax based on such illegal vote, and paid under 
protest, could be recovered back, in an action against the school 
district to whose benefit it enured. 5 

§ 396. In all county elections, in England, the first thing the 
returning officer has to do, upon receipt of the writ, is to give 
public notice, within two days after the day on which he receives 
it, between nine a. m. and four p. m., of the day on which, and 
the place at which, he will proceed to an election, of the time ap- 
pointed for the election, and of the day on which the poll will be 
taken, in case the election is contested, and of the time and place 
at which forms of nomination papers may be obtained. 6 In every 
borough, city, or town, whether it be a county of itself, or not, 
the returning officer must give public notice of the election, in 
the same form as of elections for counties. The notice must be 
published, on the day on which the returning officer receives the 
writ, or on the following day, between the hours of nine a. m. and 
four p. m. In the case of a borough, other than a district borough, 

1 Railway Co. v. Town, 104 111.' 339. 4 Lawson v. Railway Co. 30 Wis. 597. 

2 Rev. Stat. Me. 1857, c. 3, s. 4. 5 Haines^. School District, 41 Me. 246. 

3 Southard v. Bradford, 53 Me. 389. 6 35 & 36 Vict. c. 33, rules. 



339 

the day of election must be fixed not later than the fourth day 
after the day on which he receives the writ, with an interval of 
not less than two clear days between the day on which he gives the 
notice, and the day of election. In the case of a district borough 
the day of election must be fixed not later than the ninth day after 
the day on which he receives the writ, with an interval of not less 
than three clear days, jbetween the day on which he gives the 
notice and the day of election. The rule, as to the hours of the 
day during which the election must be held, is the same as for 
counties. 1 

§ 397. The statute contained the following provision : " Before 
such contract shall be of any force or validity, the same shall 
be published for four weeks immediately preceding some gen- 
eral or special election, in some newspaper published in the 
county, and, if there be none published therein, then three copies 
of the same shall be posted in three of the most public places in 
each township in the county, for the length of time aforesaid, 
together with a proclamation of the proper officer, directing how 
and where the vote thereon shall be taken, and returns made, and 
canvassed, and in what manner, or form, the people shall vote 
thereon, and, if it shall appear that a majority of the people in 
any county, voting thereon, are in favor of the contract, or propo- 
sition, submitted to them, then and in that case such contract or 
proposition shall be binding upon the parties thereto ; but if a 
majority of the people voting on such proposition are against 
the same, then it shall be null and void." 2 It was held, by the 
supreme court of Iowa, that the want of the prescribed proclama- 
tion would not annul a contract, when the contract itself was duly 
published, accompanied by editorial notices and by newspaper 
articles informing the electors of the proposed election, and when 
the votes cast for the proposition were, in number, more than two- 
thirds of those cast for any office, or on any other question, at the 
election. 3 

§ 398. Where a railway charter provided for calling an election, 
on a petition of twenty -five legal voters, to determine whether a 
subscription should be made to the capital stock of the railway 
company, and a tax levied for the payment thereof, and required 

1 35 & 36 Vict. c. 33. 3 Page County v. American Emigrant 

2 Laws Iowa, Kev. 1860, s. 988. Co. 41 Iowa, 115, 



340 

notice to be given of such election, and also authorized the towns, 
through or near which the road should be located, to " make dona- 
tions and to issue bonds for the same to the railway company, in 
the manner " thereinbefore provided for, it was held that whatever 
might be the rule, as to subscriptions to the capital stock, it was 
clear that, so far as donations were concerned, the failure to sub- 
mit a formal proposition to the electors, for the levy of a tax, 
would not render the bonds issued under the election void, and 
that the people, in voting the donation of bonds, impliedly voted 
for the levy of the requisite tax to pay them. 1 

§ 399. Where the by-laws of a town required notices of town 
meetings to be served, by posting up " attested copies " of the 
warrants therefor, and the notices for a particular meeting were 
signed by the constable, and communicated the substance of the 
warrant, with reasonable certainty, although such notices were not 
attested copies, nor grammatically precise, the election was held 
valid. 3 The circumstance that a constable de facto, who serves 
a notice of election, is not a constable de jure, will not affect the 
validity of the election. 3 That a land-owner had due notice of the 
selectmen's meeting to locate a town way may be inferred from a 
notification seasonably inserted in a newspaper published in his 
neighborhood. 4 A warning of a town meeting, addressed to " the 
inhabitants " of the town, is not invalid by reason of the fact that 
many of the inhabitants are not voters. Besides the term 
" inhabitants," used in such a connection in the statutes, imports 
inhabitants qualified to vote. 5 A notice of a special town meet- 
ing, which states that it is to be held at the request of voters of the 
town of D., and for the purpose of giving directions to the super- 
visors of that town, sufficiently indicates that the place, specified 
for the meeting, is in that town. 6 When the statute, makes the 
duration of an election, on the question of prohibiting the sale of 
intoxicating liquors, to depend on the number of the qualified 
electors duly registered, it is not necessary that the notice of the 
election should specify the number of days during which the elec- 
tion is to be held. 7 When a vacancy, in the office of county com- 

1 Prairie v. Lloyd, 97 111. 179. 5 Baldwins North Branford, 32 Conn. 

2 Mowry's case, C. S. & J. 514. 47. 

3 Bird v. Merrick, L. & K. 115. G State v. Supervisors, 58 Wis. 291. 

4 State v. Beeman, 35 Me. 242. 7 Malone's case, 41 U. C. Q. B. 159 ; 

Hamilton's case, id. 253. 



341 

missioner, is to be filled, at a general election, but no commissioner 
for the frill term is to be chosen, at such election, the fact that 
the notice of election does not show that an unexpired term is to 
be filled will not affect the tenure of office of the commissioner 
elected. 1 

§ 400. Under a statute authorizing an election to be held on the 
question of adopting certain regulations respecting fences, on 
the petition of freeholders of the county, subject to the counter 
petition of freeholders as therein prescribed, 3 it was held by the 
supreme court of Georgia, that, while all qualified electors were 
entitled to vote at the election, only freeholders were empowered 
to petition for, or against, the holding of the election, or to appear 
as parties, in any stage of a contest of the election. 3 

§ 401. Under a statute providing that, " upon the presentation 
of such a . petition, signed by at least one-half of all the legal 
voters in the county, as shown by the last preceding census, if the 
notice hereinbefore prescribed shall have been given, the board 
shall order that, at the next general election, a vote shall be taken," 4 
on the question of removing the county seat, it was held that the 
supervisors acted judicially in determining whether the petition 
was duly signed and the notice duly given, and that their decision 
was conclusive upon other tribunals, when collaterally questioned, 
until reversed or set aside. 5 

§ 402. The county commissioners of the state of Kansas were 
authorized and required, by law, to order an election for the relo- 
cation of the county seat, upon the petition of three-fifths of the 
legal electors of the county. The statute contained the following 
section : " For the purposes of this act, the number of legal elect- 
ors in the county shall be ascertained from the last assessment 
rolls of the several township assessors in the county." The com- 
missioners of one of the counties refused to order such an election, 
for the reason that, although the petition was signed by three-fifths 
of the legal voters on the last assessment rolls of the several town- 
ships, it was not signed by three-fifths of those named in the tax- 
payers' statements of personal property, on which the assessment 
rolls were based. In an action- of mandamus, brought to compel 

1 Parmater v. State, 102 Ind. 90. 4 Code Iowa, 1873, s. 285. 

2 Code Ga. 1873, s. 1455. 5 Bennett v. Hetherington, 41 Iowa, 

3 Tharpe v. Hardison, 69 Ga. 280. 142. 



342 

the commissioners to order an election, the supreme court of Kan- 
sas held that the commissioners were not concluded by the 
assessment rolls, but were at liberty to ascertain the number of 
legal voters from the statements of personal property. 1 A statute 
declaring that " special meetings may be convened when the select- 
men shall deem it necessary, or on application of twenty inhab- 
itants qualified to vote in town meetings," secures to twenty voters 
a right to demand that a town meeting be convened, for any legiti- 
mate and proper purpose, and imposes upon the selectmen a corre- 
sponding duty. 2 Where the statute imposes upon the board of 
election commissioners the duty of calling and holding an election, 
the performance of this duty cannot be refused on the ground that 
there may not be sufficient funds in the treasury to defray the 
expenses. 3 

§ 403. In the absence of provision by the legislature or the 
town, the notice of a town meeting is to be given, in Massachu- 
setts, according to usage. Where a warrant was duly issued and 
served for a meeting, for the choice of three representatives, and 
afterwards a second warrant was issued, for a meeting on the same 
day, for the choice of a fourth, of which less notice was given 
than was usual in the town, and four representatives were chosen, 
at successive ballotings ; it was held that there was no legal notice 
of the second warrant, and that the election of the person last 
chosen was void. 4 When there is no by-law prescribing the time 
and manner of giving notice of town meetings, no usage can be 
set up, to have the force of law, and to annul the proceedings of 
any meeting, unless such usage be ancient, and so well established, 
and so precise and definite, that all the inhabitants may be pre- 
sumed to know the exact force of the usage, as they would of a 
law if one existed, and to know also clearly and certainly when 
the town meeting conformed to, and when it violated the, usage. 5 
Warrants calling a meeting, for the choice of representatives, were 
dated on the fifth of May, were delivered to constables for 
service, between the fifth and ninth, and were returned on the 
tenth, having been served by printed notifications left at the 
houses of the inhabitants on the tenth ; and it did not appear 

1 State v. Commissioners, 25 Kan. 419. 4 Bragdon's case, C. S. & J. 139. 

2 Lyon v. Rice, 41 Conn. 245. 5 Thayer's case, id. 395. 

3 Gibbs v. Bartlett, 63 Cal. 117. 



34:3 

that the town had ever passed any vote establishing the manner 
in which meetings should be called, or that there was any uniform 
usage for calling town meetings. It was held that the notice of 
the meeting was reasonable and sufficient. x Where the usage is 
to give fourteen days' notice of a town meeting, but the constitu- 
tion requires that, upon failure to elect, another meeting shall be 
held, on a day which may occur less than fourteen days after the 
first, it will be sufficient if all the notice possible under the cir- 
cumstances be given. 2 Under a statute providing for an insertion 
in the Dublin Gazette of a notice " that the election of a treasurer, 
for such county, * will be held at some day, not less than four- 
teen days distant from the date of such notice," 3 the notice must 
be given for fourteen clear days after the date of its first insertion 
in the Dublin Gazette. 4 

§ 404. An act of the legislature, which was passed March 1, 
1872, and took effect March 21, 1872, authorized a certain town- 
ship to issue bonds, upon condition that a majority of the electors 
of the township should first vote for their issue, at an election to 
be held for that purpose. It contained a provision that "the time 
and place of holding said election shall be designated by the said 
trustee, treasurer, and clerk (or any two of them), by giving at 
least thirty days' notice, by posting written or printed notices 
thereof in three of the most public places in said township." The 
election was held on the eighth day of April, only eighteen days after 
the act took effect. The bonds were issued on the fifteenth day of 
April. And all this was shown on the face of the bonds. It was 
held by the supreme court of Kansas, that both the election and the 
bonds were void ; that sufficient time did not elapse, after the law 
was passed, before the election was held and the bonds issued; 
and that no person could be an innocent purchaser of the bonds 
without notice of their invalidity. 5 Under a statute empowering 
the board of supervisors to order a vote to be taken at the general 
election, on the question of the removal of the county seat, on 
receipt of a petition therefor, signed by at least one-half the legal 
voters of the county, and providing that "sixty days' notice of the 
presentation of such petition shall be given by three insertions in 

1 Draper's case, C. S. & J. 157. 4 Regina v. Lander, 1 Ir. K. C. L. 225. 

2 Haws v. Darling, L. & R. 18. 5 Geup v. Township of Oxford, 16 Kan. 

3 4 Geo. 4, c. 33, s. 1. 72. 



344 

a weekly newspaper," 1 and requiring the board to " publish a notice 
of such election, in some newspaper, if there be one published in 
the county, for four consecutive weeks, the last publication to be 
at least twenty days before said election," 3 it was held, by the 
supreme court of Iowa, that, inasmuch as the legislature had pre- 
scribed the time which must elapse after the last publication of 
the notice of election, but had not fixed the time which must 
elapse after the last ef the three publications of notice of the 
presentation of the petition, it was a reasonable inference that 
the legislature intended that three publications of the latter notice 
should be sufficient, if the first was published sixty days before 
the presentation of the petition. 3 

§ 405. A statute of Indiana contained the following sections : 
" 1. A general election shall be held annually, on the second 
Tuesday in October, at which all existing vacancies in office and 
all offices, the terms of which will expire before the next general 
election thereafter, shall be filled, unless otherwise provided by 
law. 2. The clerk of the circuit court shall, at least twenty days 
before such election, certify to the sheriff of his county what offi- 
cers are to be elected ; and such sheriff shall give fifteen days' 
notice thereof, by posting up, at all usual places of holding such 
elections, a copy of such certificate, and by publication thereof in 
some newspaper of his county, if any there be, and by delivering 
a copy thereof to the clerk of each township within the county, if 
there be any in such township, who shall notify the trustees of 
said township thereof." 4 It was held by the supreme court of 
Indiana, that the first of these sections was so limited by the 
second that an election to fill a vacancy could not legally be held, 
when the interval between the occurring of the vacancy and the day 
of the election was not sufficient to give the notices required by 
law. 5 Subsequently the same court, on an application- by the 
newly elected judge for a mandamus, to compel the governor to 
grant him a commission, affirmed the decision that the election 
was void and refused the mandamus. But it further appeared 
that the judge, whose resignation, dated September 28, 1861, had 
occasioned the vacancy, had been designated by the governor to 

1 Code Iowa, 1873, s. 284. 4 Kev. Stat. Ind. (G. & H.) 306. 

2 Id. s. 285. 6 Beal v. Kay, 17 Ind. 554. 

3 Bennett -y.Hetherington, 41 Iowa, 142. 



345 

receive the appointment of colonel of a regiment of volunteers, 
and had been mustered into the service of the United States, on the 
sixteenth of September, more than twenty days before the election, 
and had acted in the two offices of judge and colonel, in the 
former under a commission, in the latter without a commission, 
until September 28, when the commission of colonel was issued 
to him and accepted, being antedated September 16, and that 
the commission of colonel had been withheld, at the request of 
the officer, with the consent of the governor, to enable the former 
to decline the colonelcy and retain the judgeship, if he should 
prefer to do so. The court however held that these additional facts 
did not change the character of the case ; that it was doubtful 
whether the officer became colonel, before he received his com- 
mission and ceased to be judge ; and that, if he did, the people 
were not bound to take notice of the fact ; and that a case was 
not presented of constructive notice of the vacancy to the people, 
until the officer retired from the bench and the governor's tem- 
porary appointee took his place. 1 

§ 406. A county by-law, approved by the electors, under the 
Canadian " Temperance Act " of 1864, was set aside, on the ground 
that in several of the municipalities notice of the election was not 
given in time, and was not posted in four public places, as required 
by the statute ; it appearing that, but for these irregularities, the 
result might have been different. 3 A record of the warning of 
a town meeting, and of the proceedings of the meeting held agree- 
ably thereto, is sufficient prima facie to show that the warning 
was, in fact, posted up as required by law. 3 Where under a stat- 
utory provision that the notice of a town meeting shall be posted 
seven days, " unless the town has appointed by vote, in legal 
meeting, a different mode, which any town may do," 4 a town voted 
that not less than three months' notice of its meetings should be 
called, it w^as held that the notice so required was unreasonable, 
and therefore unauthorized and void. 5 

§ 407. The warrant must of course conform to the requirements 
of the statute. A statute establishing a city government, in place 
of a town government, and authorizing the selectmen of the town 

J Beal v. Morton, 18 Ind. 346. 4 Eev. Stat. Me. c. 3, s. 7. 

2 Mace's case, 42 U. C. K. B. 70. 6 Jones v Sanford, 66 Me. 585. 

3 Lemingtonv. Blodgett, 37 Verm. 210. 



346 

to call ward meetings, for the election of ward and city officers, 1 
confers upon the selectmen no authority to insert, in their warrant, 
an article requiring the electors to cast their votes for a county 
officer. 2 The requirement that the warrant shall specify the time 
for opening the polls is directory to town officers ; although the 
omission of such specification will subject the selectmen to the 
penalties prescribed in the act, it will not, except in cases of fraud, 
invalidate an election made at a meeting held in pursuance of such 
warrant. 3 Under a statute declaring that "the subject-matter of 
all business, to be there acted upon, shall be distinctly stated in 
the warrant, and nothing done, at any meeting, shall be valid, 
unless the subject thereof is so stated," 4 the object of specific 
articles in the warrant is to give information to the voters of the 
"subject-matters" to be acted on, in the meeting, so that they 
may be able to act deliberately and intelligently ; and, if the subject 
intended for action be plainly referred to, in the warrant, authority 
is conferred upon the town meeting to act upon particulars neces- 
sarily included in the subject. 5 

§ 408. The statute 6 contained a provision that the warrant for 
a town meeting " shall express the time and place of the meeting, 
and the subjects to be there acted upon ; the selectmen shall insert 
therein all subjects which may in writing be requested of them by 
any ten or more voters of the town, and nothing acted upon shall 
have a legal operation, unless the subject-matter thereof is con- 
tained in the warrant," and that " any town, at a meeting notified 
for that purpose, may authorize their collector to use all means of 
collecting the taxes, which a town treasurer, when appointed 
collector, may use." 7 It was held, by the supreme court of Massa- 
chusetts, that the power to invest town officers, lawfully chosen at 
a town meeting, with any special authority, which the town could 
lawfully confer upon them, in the exercise of their official duties, 
was incident to the power to choose them, and that a specification, 
in the warrant, for an annual town meeting, that it was called " to 
elect all necessary town officers for the ensuing year," and " to 
raise and appropriate such sums of money as may be necessary to 

*Stat. Mass. 1854, p. 182, s. 23. 5 Pittsburg v. Danforth, 56 N. H. 272. 

2 Ellis v. Commissioners, 2 Gray, 370. 6 Gen. Stat. Mass. 1860, c. 18, s. 22. 

3 Freeman's case, C. S. & J. 543. 7 Id. s. 73. 
4 Gen. Stat. N. H. 1867, c. 35, s. 2. 



347 

defray town charges for the coming year, and pay any indebted- 
ness of the town," was sufficient to authorize the town to vote to 
invest the collector of taxes, then duly chosen, with all the powers 
which a town treasurer had, when appointed collector of taxes. 1 

§ 409. An article, in the warrant for a town meeting, " to deter- 
mine the number of representatives the town will choose, to 
represent them at the general court, to be held at Boston, on the 
first Wednesday of January next," is sufficient to authorize the 
choice of representatives. 2 If the choice of a representative is 
embraced in the warrant for a town meeting, the town may lawfully 
entertain any motion relating to that subject ; and a motion to 
reconsider the vote of a former meeting to send a representative 
is incidental thereto, and is in order before the poll is opened. 3 
The failure to insert, in a warrant for a town meeting, for the 
choice of representative, in the state of Massachusetts, an arti- 
cle to determine whether the town will elect one, will not 
preclude the town from voting upon that question, and, therefore, 
will not invalidate an election effected at a meeting held under 
such warrant. 4 The warrant and notices for a meeting for the 
election of a representative which were dated November 16, 1850, 
having directed the electors to meet on Monday, the twenty-fifth 
of November next, " to choose a representative to represent them, 
in the general court to be held at Boston, on the first Wednesday 
of January next," it was held that the informality of the warrant 
and notices was not sufficient to invalidate an election held on the 
twenty -fifth of November, 1850. 5 The fact that the warrant, for 
notifying a meeting for the choice of representatives, does not 
specify the time, for opening the poll, prescribed by law, 6 will 
not invalidate the election. 7 

§ 410. The selectmen of a town having issued a warrant for a 
meeting for the transaction of certain town business, and also for 
the choice of a representative, and the same having been served, 
according to its direction ; one of the selectmen afterwards, and 
before the meeting, with the assent of another, inserted a new 
article in the warrant, "to see if the town would send a represent- 

1 Sherman v. Torrey, 99 Mass. 472. 5 Barry's case, C. S. & J. 592. 

2 Warren's case, C. S. & J. 403. 6 Stat. Mass. 1839, c. 42. 
3 Ilsley's case, id. 474. 7 Walker's case, C. S. & J. 394. 
4 Freeman's case, id. 543. 



348 

ative ; " a meeting was held accordingly, at which it was voted 
not to send, and the town refused to reconsider that vote ; the 
selectmen then called upon the inhabitants to bring in their votes 
for representative ; several brought in their votes accordingly ; 
some refused to do so; others withdrew from the meeting; and, 
on the third balloting, an election was held. It was decided that 
the election was valid. 1 When the second article, in the warrant 
for a town meeting, was " to bring in their votes for a representa- 
tive to the general court on a separate ticket," it was held that 
the meeting could lawfully act upon this article, before disposing 
of the first article in the warrant ; that a motion to send, or not 
to send, a representative, was equivalent to a motion to take up 
the second article in the warrant ; and that a motion not to send 
a representative, made before acting on the first article, and fairly 
adopted, was binding upon the town, so as to justify the refusal 
of the chairman of the meeting to receive, or count, several votes 
tendered by legal voters for representative. 2 When a meeting, 
for the choice of a representative, was held, under a warrant con- 
taining only one article, namely, " to choose a representative," it 
was held that the town had no authority to vote not to send a 
representative, and that an election, after such a vote, was valid. 3 
The entire omission of the subject of the election of representa- 
tives, in the warrant for a town meeting held on the second Monday 
of November, is a sufficient reason for calling a meeting for the 
election of representative on the fourth Monday. 4 

§ 411. An article, in a warrant for a town meeting, will be suffi- 
cient, if it give notice of the subject-matter to be acted upon with 
reasonable certainty. When the only mode provided, in a railway 
charter, by which towns interested in the road may aid in its 
construction, is a subscription to the capital stock of the company, 
an article, in the warrant for a towm meeting, " to see if the town 
will loan its credit to aid in the construction of a railroad," gives 
reasonable notice that a proposition to subscribe for stock will be 
acted upon, and will authorize such action. And when, under 
such an article, the town authorizes its selectmen to subscribe, in 

1 Ellis' case, C. S. & J. 43. But see the 3 Puffer's case, C. S. & J. 32. But see 

opinion of the judges in years 1810-11 opinions of court in years 1810-11, and 

and 1815-16. 1815-16. 

2 Lynde's case, L. & R. 25. "Erving's case, C. S. & J. 508. 



349 

behalf of the town, for stock in the company, to an amount speci- 
fied, without designating the kind of stock, and the selectmen 
subscribe for non-preferred stock, the town is bound by the 
selection made. 1 In a warrant calling a town meeting, to act upon 
the acceptance of a town way, a general description of the way is 
sufficient. 2 Under articles, in a warrant for a town meeting, " to 
choose all necessary town oificers for the year ensuing," and 
" to see if the town will accept the provisions of " certain statutes, 
relating to the election of road commissioners, it was held to be 
competent for the voters, after accepting the statutes, to proceed 
to vote, at the same meeting, for the road commissioners therein 
provided for. 3 Under an article, in a warrant for a town meeting 
" to see if the town will grant aid to A., for injuries received while 
in the employ of the town," the town may vote to pay a sum in 
compromise of A.'s claim. 4 

§ 412. Under an article, in the warning for a town meeting, " to 
see if the town will divide school-district No. 10, and annex a por- 
tion of it to district No. 4, and the remainder to district No. 5," 
it is competent for the town to vote " to set the whole of district 
No. 10 to district No. 4." 3 The warning for a town meeting was 
in the following words : " To make alterations in school districts. 
A, B, C, and D petition to be set, together with their property, 
from district No 1, to No. 7." The town voted to set the persons 
named, in accordance with their petition, and also voted to set 
other persons, not named in the warning, with their property, from 
district No. 3, to district No. 10. It was held that the vote was 
authorized by the notice, and had the legal effect to transfer per- 
sons not named in the warning, with their taxable property, from 
one district to another. 6 A warning of a town meeting, " to see 
if the town will vote to divide school-district No. 9, in said town ; 
to make such alterations in school districts as may be found 
necessary," is sufficiently definite to warrant a vote to form a new 
district, out of a portion of the territory of district No. 9, described 
in the vote. 7 An article, in the warning of a town meeting, "to 
see if the voters present will vote to set off" certain persons named, 

1 Kailway Co. v. Brooks, 60 Me. 568. 5 Moore v. Beattie, 33 Verm. 219. 

2 State v. Beeman, 35 Me. 242. 6 Hall v. School District, 46 id. 19. 

3 Wood v. Jewell, 130 Mass. 270. 7 Weeks v. Batchelder, 41 id. 317. 

4 Matthews v. Westborough, 131 Mass. 
521. 



350 

"and their real estate, * from school-district No. 5," and 
other persons named " and the farms, on which they reside, from 
school-district No. 4 ; the same to a new school district," presents 
a sufficiently definite description of the real estate to be comprised 
within the new district, and a vote " to constitute a new school 
district, agreeably to the third article in the warning, to be called 
district No. 10," is effective to constitute such district. 1 Under a 
statute requiring notice to be given, to the electors, of the question, 
or questions, to be submitted at a school election, a notice which 
specifies the time and place of the meeting, and states the object 
of the meeting to be to establish a school in the district, and to 
provide " means to pay for the same," but does not refer to the 
subject of borrowing money, or issuing bonds, is not sufficient to 
authorize the issue of bonds for money borrowed. 2 

§ 413. Where the application for a towm meeting was, "to see 
what course the town will take, to fill the quota of men required 
of the town of Waterbury, under the last two calls of the general 
government for soldiers," and the warning was " to see if the 
town will pay any additional bounty, to volunteers from said town, 
and if any, how much, or what other action they will take on the 
subject," and the vote was " to pay each volunteer from this town 
a bounty of $300, when mustered into the United States service," 
it was held that the bounty was to be restricted to such soldiers 
as should enlist to the credit of the town, on its quota, under the 
call, or calls, made before the date of the vote. 3 Under a warn- 
ing, " to see what course the town will take in regard to raising of 
soldiers that the town is now called upon to furnish," and " to see 
what bounty the town will agree to pay, as an inducement for volun- 
teers to enlist," a vote to " pass over" the first article; "to raise 
$300 as a bounty, or pay $20 per month for each man, while in 
service ; and to pay these men, if raised, the bounty of $300, 
each, when mustered into service, or $20 per month, during the 
term of service," applies to the men required, at the time, to fill 
the quota of the town. 4 

§ 414. It was competent for a town meeting to vote " to pay each 
volunteer, who should he mastered into the United States service, 
under the call of the president, of October 17, 1863, for three 

1 Moore v. Beattie, 33 Verm. 219. 3 Wrisley v. Waterbury, 42 Verm. 228. 

2 Thatcher v. People, 98 111. 632. 4 Eddy v. Landgrove, 44 id. 465. 



351 

hundred thousand men, the sum of $300 " under a warning, " to 
see if the town will vote to raise money, to pay bounties to such 
men as will enlist , under the last call of the president for three 
hundred thousand men ; to see what other action the town will take, 
in relation to raising their quota of men, under said call." 1 Under 
a warning, " to see if the town will raise a sum of money to 
encourage enlistments, in said town," a vote "that the sum of 
$300 be paid, to each of such volunteers as may be enlisted and 
mustered into service, under the call of the president for 300,000 
men, October 17, 1863, if the quota is not filled ; and, in case the 
quota is filled, then the further sum of $200 to the number of 29 
men," is not confined to enlistments actually made within the terri- 
torial limits of the town. 2 A town meeting having been warned, 
" for the purpose of acting on a proposition to pay such money as 
might be deemed expedient, to such citizens of the town " as should 
volunteer, and be mustered into the military service of the United 
States, and be applied on the quota of the town, it was held that 
a vote offering a bounty to any volunteers, who should be mustered 
into the service, and applied on the quota of the town, without 
restricting it to citizens of the town, was valid. 3 A vote " to raise 
fifty -five cents on the dollar, on the grand list, to pay the bounty 
offered to the soldiers," is sufficiently particular and definite, under 
a warning, " to see if the town will raise money to pay the bounty 
promised to soldiers." A vote of a town, " to pay each man liable 
to draft, who has furnished a substitute, " six hundred dol- 
lars," is warranted by a warning " to see what action the town 
will take, in regard to the expected draft soon to be made," and to 
" see whether the town will vote to pay bounties to volunteers, if 
so, what bounties." 4 

§ 415. A town at a meeting, held in March, voted upon the 
articles named in the warrant, and then voted " that the meeting 
stand adjourned to the April meeting." It had been the uniform 
custom of the town, for fifty years, to hold a town meeting, annu- 
ally, on the first Monday of April. It was held that the adjourn- 
ment was to a fixed future time, and that the town had authority, 
at the April meeting, to vote upon matters contained in the 
warrant for the March meeting,. if the rights of the third parties 

1 Kittridge v. Walden, 40 Verm. 211. 3 Ball v. Warren, 36 Conn. 83. 

2 Davis v. Windsor, 46 id. 210. 4 Hickok v. Shelburne, 41 Verm. 409. 



352 

had not become vested, under the vote passed at the March meet- 
ing. 1 Where it was provided, by the statute, that the warrants, 
for calling town meetings, for the election of representatives, should 
specify ten o'clock, in the forenoon, as the hour at which the poll 
should be opened, and that the poll should be opened accord- 
ingly, and closed by one o'clock, in the afternoon, it was held that 
it was not necessary that the poll should be opened, but that the 
voters of the two towns might properly vote not to send a repre- 
sentative, and might thereupon dissolve a meeting called for the 
election of a representative. 2 

§ 416. A vote of a town meeting, instructing the selectmen to 
procure recruits for the town, and empowering them to borrow 
funds, on five years' credit, for the town, to pay bounties to such 
recruits, is not warranted by a warning, " to see if the town will 
vote to raise a tax, upon the grand list, to pay recruits, or volun- 
teers, for said town, who may hereafter enlist ; to decide by vote 
what per cent, on the grand list, shall be so raised, and when it 
shall be collected and paid into the treasury of the town ; to specif- 
ically instruct the selectmen of said town, in the disposition of 
said funds." 3 Under a warrant, which contained the following 
article : "to see if the town will appoint a committee, to petition 
the legislature, at its next session, for the passage of an act author- 
izing the annexation of the town of West Roxbury to the city of 
Boston, and to make an appropriation therefor," the town voted 
to appoint a committee and make an appropriation. It was held, 
by the supreme court of Massachusetts, that the vote was illegal. 4 
A warning to see if a town will vote a tax, for the purpose of pay- 
ing a bounty, does not authorize a vote to borrow money for this 
purpose. 5 Under a statute requiring the selectmen, in their warn- 
ing for a town meeting, to " set forth the business to be done and 
the subjects to be considered, at such meeting," 6 the notification 
must set forth the business to be acted on with such clearness and 
particularity that the voters may not be misled in regard to such 
business, and must be broad enough in its terms to include the 
business transacted. A warrant " to see if said town will accept 
and adopt the report of the ' committee to alter school districts,' ' 

J Keed v. Acton, 117 Mass. 385. 4 Minot v. West Roxbury, 112 Mass. 1. 

2 Mendons case, C. S. & J. 558. 5 Atwood v. Lincoln, 44 Verm. 332. 

3 Blush v. Colchester, 39 Verm. 193. 6 Rev. Stat. Verm. 1863, c. 15, s. 3. 



353 

and, " to do any other business thought proper, when met," will 
not authorize a vote to abolish a school district. 1 

§ 417. In an action by a town, for a penalty for taking and 
carrying away shell-fish, instituted under a by-law alleged to have 
been adopted by the town meeting, it is incumbent on the town 
to show that the warning, for the town meeting, contained a 
specification of the regulation of the shell-fishery of the town, as 
a subject for the action of the town meeting. 2 Where the statute 
requires a notification of town meetings in writing, " specifying 
the objects for which they are to be held," 3 a town meeting not 
warned in the mode prescribed by law is illegal, and its acts are 
void. Where a meeting is warned "to choose assessors, board 
of relief, selectmen, and other town officers, and to do any other 
business then thought proper by said meeting," and no other 
notification is given, a vote for the regulation of the shell-fishery 
of the town will be illegal and void. 4 

§ 418. Where the statute declares that " the subject-matter of 
all business, to be there acted upon, shall be distinctly stated 
in the warrant, and nothing done at any meeting shall be valid, 
unless the subject thereof is so stated," 5 a town meeting cannot 
legally vote to adopt the provisions of a certain statute, and so 
abolish the school districts in the town, under an article in a war- 
rant " to see if the town will vote to redistrict its school districts, 
or what action they will take, in relation thereto ;" and a vote to 
indefinitely postpone an article, in a warrant, " to see if the town 
will reconsider their action relating to the appointment of agents, 
under the law of New Hampshire, entitled ' an act to abolish 
school districts in certain cases,' and return to the old school 
district system," cannot have the effect to ratify the invalid action, 
by which the town attempted, in the manner before stated, to 
abolish the school districts therein. A legal vote to adopt the 
provisions of the act would have abolished ipxo facto and imme- 
diately the then existing school districts. 6 

§ 419. A town, having voted a guaranty of railway bonds, at a 
meeting not legally warned, on certain conditions, afterwards voted 

1 Wyley v. Wilson, 44 Verm. 404. 4 Hayden v. Noyes, 5 Conn. 391 : Wil- 

2 Willard v. Killiugworth, 8 Conn. 247. lard v. Killingworth, id 247. 

3 Stat. Conn. 457. 5 Gen. Stat. N. H. 1867, c. 35, s. 2. 

6 Child v. Coburn, 55 N. H. 71. 
23 



354 

to " let tlie conditions * remain," at a meeting the warning 
whereof contained no notification that the question of a guaranty 
of the bonds would be acted on. It was held that this latter vote 
did not ratify the former, nor constitute, by reference to it, a vote 
to guaranty the bonds. 1 A notice of a special district meeting, 
which states the purpose of the meeting to be the " laying of a 
tax, to meet the expenses of repairing the school house, in said 
district," will not warrant a vote to raise, as an addition to the 
tax, the amount of a premium paid, by the trustee of the district, 
for insurance upon the school house. 2 Under an article, "to see 
if the town will vote to ratify the vote, or article, of the meeting, 
in said town, of July 5, 1864, to pay one hundred dollars to men 
who were drafted, from May 1, to July 1, 1864, and furnished 
substitutes to apply on said town's quota," adopted by a majority 
vote, the town could not pay money to persons, who, having been 
drafted, had neither served in the war, nor furnished substitutes, 
but had paid commutation money. 3 The mayor having summoned 
the corporation to meet and elect a new mayor, on the usual day, 
a majority, when met, cannot, against the consent of the mayor, 
proceed to any other business, such as that of filling up vacancies 
in the common council, there being no certain day fixed for this 
purpose, though the general custom may have been to fill up all 
vacant offices on the day of electing the new mayor. 4 

§ 420. To sustain an assessment voted by the inhabitants of a 
school district, called together for that purpose, it must be clearly 
shown that the statutory notice of the time, place, and purposes 
of the meeting, was given, and that the assessment was ordered by a 
statutory majority of the votes. 5 At a meeting of a school district, 
called by a warrant containing an article, " to see if the district 
will raise money to pay debts of the district, or act thereon," the 
district may vote " to authorize the treasurer to borrow money to 
pay debts of the district ;" and, under this vote, the treasurer 
may borrow money. 6 Under the sixth article of a warrant for a 
town meeting, " to see what action the town will take, relative to 
collecting the tax on " certain land, " and pass any votes on the 

1 Trust Co. 1). Hebron, 51 Conn. 22. 4 Machell v. Nevinson, cited 11 East, 

2 Holt's appeal, 5 K. I. 603. ' 84. 

3 Pittsburg v. Danforth, 56 Mass. 272. 6 State v. Van Winkle, 1 Dutch. 73. 

6 Whitney v. Stow, 111 Mass. 368. 



355 

subject that may be deemed proper," the town voted " that the 
subject-matter of the sixth article be referred to the selectmen, 
with full powers." It was held that the selectmen had no authority 
to grant to the owner of the land permission to use it as a cemetery, 
in consideration of the paymentof the tax. 1 Where the warrant 
does not specify the time of opening the poll, and the poll is not kept 
open two hours, as required by statute, 3 the election is void. 3 Under 
a statute declaring that no business shall be transacted at a school 
district meeting, except such as shall have been specified in the 
notice of the meeting, a vote to raise a tax, with no specification 
of the purpose of the tax in the notice, or in the resolution voted 
for, is void. 4 A vote to " pass over " an article, in the warning 
of a town meeting, is equivalent to a vote rejecting the proposition 
embraced in the article. 5 

§ 421. The first requisite for a parliamentary election in Great 
Britain is the writ, which, in case of a general election, is issued out 
of chancery, by the advice of the privy council. 6 For English and 
Scotch elections, the writs go from the petty bag office, by warrant 
of the lord chancellor. 7 For Irish elections, they are issued from 
the office of the clerk of the crown and Hanaper, in Dublin, by 
order of the lord chancellor of Ireland. 8 In other elections, new 
writs, so-called, are issued from the office of the clerk of the crown 
in chancery, under the speaker's warrant, and, when the house is 
in session, by its own order. 9 The writ for a general election of 
members of the house of commons appoints a day, on which par- 
liament is to meet, specifies the. number- of representatives to be 
elected, and enjoins the officer, to whom it is addressed, to cause the 
names of the members, when elected, to be certified to the crown 
in chancery without delay. A new writ is much to the same effect, 
except that it omits the preamble, and shows how the vacancy oc- 
curred. 1 ° The writ is directed to the returning officer. In the 
counties the sheriffs have been, from ancient times, the returning 
officers. In cities, or towns, constituting counties, in the absence 
of statutory provisions to the contrary, the sheriffs are usually, 

Cemetery v. Everett, 115 Mass. 354. 6 Bushby, 1. 

2 Stat. Mass. 1839, c. 42, s. 2. 7 12 & 13 Vict. c. 109, s. 14. 

3 Hannum's case, C. S. & J. 471. s 39 & 40 Geo. 3, c. 67, s. 2. 

4 State v. Greenleaf, 5 Vroom, 441 ; 9 Bushby, 1. 
Cochrane v. Garrabrant, 3 id. 444. 10 Id. 9. 

5 Livingston v. Albany, 40 Verm. 666. 



356 

but not always, the returning officers. In other boroughs, or 
towns, the duties of the returning officer generally devolve on the 
principal functionaries thereof, but may devolve on other officers, 
as mayors, stewards, bailiffs, portreeves, and constables, according 
to local customs. 1 Writs are delivered, by the messenger of the 
great seal, to the proper officers in London and Middlesex, and 
to those holding their offices within five miles of London, West- 
minster, or South wark. In all other cases they are sent by. mail. 2 

§ 422. Wherever vacancies occur, in the house of commons, 
after the original issue of writs for a new parliament by the crown, 
all subsequent writs are issued out of chancery, by warrant from 
the speaker, and by order of the house when in session. The 
most frequent causes of vacancy are the death of members, their 
elevation to the peerage, the acceptance of offices under the crown, 
and adverse determinations in cases of controverted elections. 3 
When a cause of vacancy becomes known, during the session of 
the house, the speaker may be ordered, by the house, on motion 
of any member seconded by another, to issue his warrant, for a 
new writ, for the seat vacated. But, if a vacancy occur before or 
immediately after the first meeting of a new parliament, the writ 
will not be issued until after the time limited for presenting elec- 
tion petitions, or notices of contest. Nor will a writ be issued, 
if the vacated seat be claimed for another candidate. 4 When 
vacancies occur, by death, by elevation to the peerage, or by the 
acceptance of office, during, or prior to, a recess by prorogation, 
or adjournment, the law provides for the issue of writs during the 
recess, without the immediate authority of the house. On the 
receipt of a certificate of two members that any member has died, 
or been duly summoned to parliament as a peer, the speaker is 
required to give notice forthwith, in the London Gazette, and, after 
six days from the insertion of such notice, to issue his warrant to 
the clerk of the crown to make out a new writ. 5 

But the speaker cannot issue his warrant during the recess, 
unless the return of the member, whose seat has become vacant, 
was brought into the office of the clerk of the crown fifteen 
days before the end of the last sitting of the house, nor unless 

1 Koe. 438 a. 4 May, Pari. Pr. 645. 

2 53 Geo. 3, c. 89. 6 24 Geo. 3, c. 26 ; 26 Vict. c. 20. 
■ May, Pari. Pr. 644. 



357 

the application is made so long before the next meeting of the 
house, for the dispatch of business, that the writ may be issued 
before the day of meeting ; nor can he issue a warrant, for a 
writ to fill any seat vacated by a member, against whose elec- 
tion, or return, a petition was depending, at the last prorogation, 
or adjournment. 1 Subject to the same provisions the speaker 
is required by law, 2 on the receipt of a certificate from two mem- 
bers, and a notification from the member himself, to issue his 
warrant for a new writ, during the recess, to fill the place of 
any member, who, since the adjournment, or prorogation, has 
accepted any office whereby he has vacated his seat. If, however, 
it appear doubtful whether the acceptance of such office has the 
effect lo vacate the seat, the speaker may reserve the question for 
the decision of the house. But, as elsewhere stated, the acceptance 
of the office of steward of the Chiltern Hundreds, East Hendred, 
Northstead, or Hempholme, or of escheator of Munster, at once 
vacates the seat of a member, and qualifies him to be elected else- 
where, although no new writ can be issued for the place vacated 
by his acceptance of office. 3 

§ 423. For any place in England, or Scotland, the speaker's 
warrant is directed to the clerk of the crown in chancery ; and for 
any place in Ireland to the clerk of the crown in Ireland. On the 
receipt of the speaker's warrant the writ is issued, by the clerk of 
the crown, and transmitted through the post-office. 4 If no return 
be made to the writ, within the proper time, the clerk of the crown 
will be ordered to attend and explain the omission, when, if it 
appear that the returning officer, or any other person, has been 
concerned in the delay, he will be summoned to attend the house, 
and such further proceedings will be had as the house may deem 
proper. 5 Whenever a member accepts an office of profit from the 
crown, a new writ is ordered; 6 but the seat of a principal secre- 
tary of state is not vacated by a transfer from one department to 
another ; nor is a member, who has already vacated his seat once, 
on the acceptance of one of the offices named in the reform acts 
of 1867 and 1868, required again to vacate it on acceptance of 
another of those offices. 7 But if he hold an office, which does 

1 May, Pari. Pr. 649. » May, Pari. Pr. 651. 

2 21 and 22 Vict. c. 110. fl 6 Anne, c. 7, s. 26. 

3 May, Pari. Pr. 650. 7 30 & 31 Vict. c. 102, s. 5a. 

4 53 Geo. 3, c. 89. 



358 

not vacate his seat, a new writ will issue, on his acceptance of an 
office which does vacate it. The resumption, after, resignation, of 
an office to which no successor has been appointed, does not vacate 
a seat. Inasmuch as the secretaries of the treasury, the several 
under secretaries of state, and the secretary to the admiralty, do 
not hold office, by appointment from the crown, their seats are not 
vacated ; nor will the acceptance of any other offices, of which the 
appointment does not rest directly in the crown, vacate a seat, 
except in cases where a special disqualification is created by 
statute. 1 The acceptance of a commission in the army, or navy, 
or in the militia, does not vacate a seat in the house of commons. 

§ 424. A member elect having died, before the meeting of the 
legislature, and so near the fourth Monday of November that there 
was not sufficient time for the notice prescribed, by the by-laws 
of the town, for a meeting on that day, without posting the notice 
on Sunday, the house issued a precept to the town for a new elec- 
tion. 2 The law of Virginia, in force at the time of the secession 
of the state from the union, required writs of election, to fill vacan- 
cies in the house of representatives of the United States, to be 
directed to the sheriffs, or sergeants, of the counties and corpora- 
tions of the district. 3 Where the only paper originating the 
election was a proclamation of the governor, addressed to the 
people, it was held that the defect was not technical, but substan- 
tial. 4 Under a constitutional provision that "the governor shall, 
upon being satisfied that a vacancy exists, issue a writ of election, 
to fill such vacancy," 5 the governor has no judicial authority ; his 
action may be reviewed, and its legality determined, on quo war- 
ranto. 6 In the absence of constitutional authority for a special 
election, a writ for a new election will not be issued upon a deter- 
mination that the regular election was void. 7 A member chosen 
without a precept, during the session of the general court of Massa- 
chusetts, to fill a vacancy occasioned by the removal of another 
from the commonwealth, is not entitled to a seat. 8 

§ 425. Under statutes requiring that "the person, who notifies 

1 May, Pari. Pr. 653. 5 Const. Mo. 1865, art. 5, s. 14. 

2 Sherburne's case, C. S. & J. 362. ° State v. Seay, 64 Mo. 89. 
3 Hoge's case, C. & H. 135. 7 Churchill's case, C. S. & J. 146. 
4 Beach's case, 1 Bart. 391; Segar's 8 Downe's case, id. 244. 

case, id. 426. 



359 

the meeting, shall make his return on the warrant, stating the 
manner of notice and the time it was given," 1 and that, " when the 
signature of a person is required, he must write it, or make his 
mark," 2 the return upon a warrant calling a town meeting must 
bear the sign manual of the constable who executed it. It is not 
sufficient that his name was written, at his request, and in his 
immediate presence, after he had heard it read. 3 Under a statute 
requiring notices of town meetings to be given, " by posting up 
an attested copy of the warrant, in some public and conspicuous 
place, in said town," 4 a return, upon the warrant calling the meet- 
ing, which fails to show that the copy posted was an attested copy, 
or that the public and conspicuous place, in which it was posted, 
was in the town, is fatally defective. 5 When the validity of a tax, 
alleged to have been voted at a town meeting, is called in question, 
no return having been made upon the warrant calling the meeting, 
the court, on motion and on satisfactory proof, will permit the per- 
sons, who were selectmen at the time, to supply the omission ; and 
will permit the person, who was town clerk at the time, to amend 
the record accordingly, without prejudice to the legal rights of bona 
fide claimants. 6 The certificate of a constable of the warning of 
a town meeting, in Massachusetts, was held to be conclusive 
evidence of such warning. 7 

1 Rev. Stat. Me. c. 3, s. 7. 5 Clark v. Wardwell, 55 Me. 61 ; Hamil- 

2 Id. c. 1, s. 1. ton v. Phipsburg, id. 193. 

3 Chapman v. Limerick, 56 Me. 390. 6 Bean v. Thompson, 19 N. H. 290. 
4 Rev. Stat. Me. c. 3, s. 7. 7 Johnson's case, C. S. & J. 7. 



CHAPTEK XIX. 



PROCEEDINGS. 



Secs. 

1. Vacancies in board, how filled . 426 

2. Nominations and ballot-pa- 

pers 427-430 

3. Oaths of officers of election, 431-435 

4. Determination of course of pro- 

cedure .... 436-440 

5. Opening polls. 

(1) Time .... 441,442 

(2) Place 443 

6. Ballot-boxes. 

(1) Want of proper ballot-boxes, 444 

(2) Improper position, exposure, 

custody, or location . . 445 



Secs. 
(3) Two or more ballot-boxes, 446, 447 

7. Poll-books . . . . .448 

8. Registration lists. 

(1) Use of substitutes for official 

copies .... 449 

(2) Not duly furnished . . 450 

(3) Oaths and proofs, in cases of 

unregistered persons . . 451 

(4) Failure to use registration 



list 
9. Tally-sheets 



452 
453 



§ 426. Officers of election are usually appointed, in compliance 
with statutory, or constitutional, requirements, before the day of 
the election. But, in the absence of legally constituted and sworn 
presiding officerSj the control of an election devolves, at common 
law, upon the electors themselves ;* and it is competent for them, 
without express statutory, or constitutional, authority, to select 
temporary officers to conduct the election. A statute of Tennessee 
contained the following provision : "If the county court fail to 
make the appointment, or any person appointed refuse to serve, 
the sheriff, with the advice of three justices, or, if none be present, 
three respectable freeholders, shall, before the beginning of the 
election, appoint said inspectors, or judges." 2 The supreme court 
of that state held that the provision was directory ; and that, 
whether the appointment was made by the county court, or hj the 
sheriff, or coroner, with the advice of three justices, or respectable 
freeholders, or of a less number, the result would be the same, and 
there would be no ground for avoiding the election ; that, if it were 
otherwise, the result would be interminable contests about unsub- 
stantial formalities, and a practical denial of the right of the people 
to choose their own officers. 3 Where, in the absence of the regular 



'Rex v. Commissary, 7 East, 573. 
2 Code Tenn. s. 842. 



3 McCraw v. Harralson, 4 Coldw. 34. 



360 



361 

judges of election, two boards of officers were chosen by the by- 
standers, before the hour fixed by law for opening the polls had 
arrived, it was held, by a divided court, that the board last chosen 
was the lawful board. 1 Although, in the absence of legally con- 
stituted and sworn presiding officers, the control of an election 
devolves, at common law, upon the electors themselves, still, unless 
there be a custom to regulate the time for holding the election, it 
will not be competent for a majority of the electors assembled 
to narrow the period, which the common law would allow ; and 
therefore a resolution to close the election must fix a time reason- 
able, with respect to the number of the voters and the distances 
to be travelled, and must be of sufficient notoriety. 2 An omission 
to transmit the freeholders' certificate of the election of an in- 
spector by the by-standers, to fill a vacancy required by statute, 
does not invalidate the poll. 3 

§ 427. The proceedings of an election, in England, commence 
with the nomination of candidates. The nomination is no longer 
made viva voce, in public, but in writing, in the designated room, 
where the returning officer attends, on the day and at the hour 
specified in the notice. The returning officer and his assistant, 
the candidate nominated by each nomination paper with one per- 
son selected by each candidate, and no other persons, may be 
present. The nomination papers may be delivered to the return- 
ing officer, during the two hours fixed for the election, and not 
afterwards. No person, nominated after the expiration of the two 
hours, will be entitled to have his name inserted in the ballot 
papers. Immediately after a nomination paper is delivered to the 
returning officer, notice of the nomination, setting forth the names 
of the proposer and seconder, is to be placarded in a conspicuous 
place outside the building in which the election is held. All 
objections to nomination papers, whether made by the returning 
officer, or by any other person, must be made before the expira- 
tion of the two hours appointed for the election, or within one hour 
afterwards; but objections on the ground of insufficiency of de- 
scription, or of repugnance of the description to rule 6 of the bal- 
lot act, 4 must be made at, or immediately after, the delivery of the 

1 Kirkpatrick v. Vickers, 24 Kan. 314. * " Each candidate shall be described, 

2 Rex v. Commissary, 7 East, 573. in the nomination paper, in such manner 

3 New Jersey cases, 1 Bart. 22. as, in the opinion of tne returning officer, 



362 

nomination paper, and, if not made then, shall not be allowed or 
deemed valid. 1 Every candidate, whose nomination paper is 
delivered to the returning officer, during the two hours appointed, 
and is not objected to before the expiration of one hour thereafter, 
is duly nominated, and is entitled to have his name inserted in the 
printed ballot papers. 2 A nomination paper delivered, not by the 
candidate himself, nor by his proposer, or seconder, but by his 
agent, is void. 3 A statutory requirement that the nomination 
papers be delivered to the town clerk, " at least two whole days " 
before the election, 4 does not give the clerk a discretion to require 
that the papers be transmitted to him more than two days before 
the election. 5 A nomination does not require for its validity the 
presence, or even the consent, of the candidates ; 6 but any person, 
who proposes a candidate, without his consent, becomes person- 
ally liable for the expenses of a poll. 7 

§ 428. Objections to nominations are decided by the returning 
officer. When he overrules the objection, the decision is final. 
When he sustains the objection, and in consequence rejects the 
nomination of a candidate, his decision is subject to reversal on a 
petition questioning the election, or return. 8 A bona fide decision 
of a mayor, on the validity of an objection to a nomination paper, 
is not a ground for " complaint of the conduct " of the mayor, 
within the meaning of 35 & 36 Yict. c. 60, s. 13, sub-s. 6. 9 

The statute 10 required that every candidate, at any municipal 
election of councillors, should be nominated in writing, the writiog 
to be subscribed by two enrolled burgesses of the borough, or 
ward, as proposer and seconder, and by eight other enrolled 
burgesses of the borough, or ward, as assenting to the nomination. 
It was held that a nomination paper, altered after its delivery to 
the town clerk, in the absence of the seconder and of the assenting 
burgesses, by the substitution of a different burgess as proposer, 
was invalid. 11 A nomination paper, which incorrectly states the 

is calculated to sufficiently identify such 5 Regina v. Glover, 15 L. T. N. S. 289. 

candidate ; the description shall include "35 & 36 Vict. c. 33, s. 1. 

his names, his abode, and his rank, pro- 7 2 W. 4, c. 45, s. 71 ; 2 & 3 W. 4, c. 

fession, or calling, and his surname shall 65, s. 40 ; 13 & 14 Vict. c. 68, s. 19. 

come first in the list of his names." 8 35 & 36 Vict. c. 33, rule. 

1 35 & 36 Vict. c. 33, rule 6. 9 Harmon v. Park, 44 L. T. N. S. 81. 

2 Id. rule 12. 10 38 & 39 Vict. c. 40, s. 1, sub-s. 2. 

3 Monks v. Jackson, 35 L. T. N. S. 95. "Harmon v; Park, 44 L. T. N. S. 81. 
4 22 & 23 Vict. c. 35, s. 6. 



363 

number of the burgess, on the burgess-roll, is invalid. 1 Under a 
statute providing that any candidate, at a municipal election, shall 
be nominated in writing, the writing to be signed by two burgesses, 
as proposer and seconder, and by eight others, as assenting to the 
nomination, and that " each candidate shall be nominated, by a 
separate nomination paper, but the same burgesses, or any of 
them, may subscribe as many nomination papers as there are 
vacancies to be filled, but no more," 2 if there be four vacancies to 
be filled, and a burgess subscribe, as assenting burgess, four 
nomination papers, which are delivered within due time, and sub- 
sequently subscribe, as assenting burgess, a fifth, which is also 
delivered within due time, the first four nomination papers will 
be valid, and the fifth void. 3 

§ 429. If the number of candidates nominated do not exceed 
the number of vacancies to be filled, the returning officer, at the 
expiration of one hour after the two hours appointed for the elec- 
tion, must forthwith declare the candidates elected, 4 and give public 
notice of their names, in the manner prescribed in the ballot act, 
and return their names to the clerk of the crown in chancery. 5 
But if the number of candidates nominated exceed the number of 
vacancies to be filled, the returning officer, at the expiration of the 
hour, will adjourn the election for the purpose of taking a poll. 6 
He will, as soon as practicable thereafter, give notice of the day 
on which the poll will be taken, 7 of the candidates described as 
in their respective nomination papers, of the names of the persons 
who subscribed the nomination paper of each candidate, and of 
the order in which the names of the candidates will be printed in 
the ballot papers. In the case of a borough election, three notices 
will be published in the manner prescribed for publishing all 
notices required to be given under the ballot act ; 8 but, in the case 
of a county election, the returning officer will also deliver to the 
principal post-office of the town, in which the place of election is 
situate, a paper signed by himself containing the names of the 
candidate nominated, and stating the day on which the poll will 

1 Gothard v. Clarke, 42 L. T. N. S. 776. 5 In Ireland to the clerk of the crown 

2 Munic. Elect. Act, 1875, s. 1, sub-s. 2. and Hanaper. 

3 Burgoyne v. Collins, 51 L. J. Q. B. 6 35 and 36 Vict. c. 33, s. 1. 

Div. 535. 7 The same as that conditionally desig- 

4 35 and 36 Vict. c. 33, s. 1. nated in the original notice of election. 

s 35 and 36 Vict. c. 33. 



364 

be held. This information the postmaster must forward, by tele- 
graph, free of charge, to the several postal telegraph offices situate 
in the county, to be published forthwith, at each of such offices, 
in the manner in which post-office notices are usually published. 1 
§ 430. The returning officer delivers to each voter, on demand, 
a ballot paper, with counterfoil attached. On the face of this 
paper -are printed, in alphabetical order, the names of all the can- 
didates who have been nominated according to law. At the right 
of each name is a space for the mark of the voter. The register 
number of the voter is placed on the counterfoil, when the ballot 
is delivered to him, and the same number is endorsed on the ballot. 
The secret official mark is, at the same time, stamped, or perfor- 
ated, on the ballot paper. 2 If a person, representing himself to 
be a particular elector named on the register, apply for a ballot 
paper, after another person has voted as such elector, the appli- 
cant shall, upon duly answering the questions and taking the oath 
permitted, by law, to be asked of and to be administered to voters, 
at the time of polling, be entitled to mark a ballot paper, in the 
same manner as any other voter ; but this ballot paper, which is 
designated, by the statute, as a tendered ballot paper, shall be of 
a color different from that of the other ballot papers, and, instead 
of being put into the ballot-box, shall be given to the presiding 
officer, and indorsed by him, with the name of the voter and his 
number in the register of votes, and set aside in a separate packet, 
and shall not be counted by the returning officer, and the name of 
the voter and his number shall be entered on a list called the 
tendered votes list. The validity of such tendered votes may be 
proved, or disproved, in proceedings to contest the election. 3 If 
the elector, on applying for a ballot paper, state that he is inca- 
pacitated, by blindness, or other physical cause, from marking his 
ballot paper himself, or, the poll being taken on Saturday, that he 
is a Jew, and objects, on religious grounds, to marking his paper, 
or that he is unable to read and makes the prescribed declaration 
to that effect, but in no other case, the presiding officer may 
himself mark the ballot paper, in the manner dictated by the voter, 
and place it in the ballot-box. 4 A ballot paper may be well 
marked, for one candidate, although a great portion of the cross 

1 35 & 36 Vict. c. 33, rule 9. s 35 & 36 Vict. c. 33, rule 27. 

2 Id. rules 22, 24. 4 Id. rule 26. 



365 

be opposite the name of another candidate, if the point of inter- 
section of the crossing lines be opposite the name of the former. 1 
A ballot paper may be well marked, although the marks do not 
discolor the paper, or appear to have been made with a pencil, if, 
from any circumstances, the court can infer that the marks were 
intentionally made. 2 

§ 431. Officers of election are required, by state laws, to take pre- 
scribed oaths, in all the states. In England, before the opening of the 
poll, every returning officer, and every other officer, clerk, or agent, 
authorized to attend, at a polling station, or at the counting of the 
votes, must make the statutory declaration of secrecy; 3 and any 
officer, clerk, or agent, in attendance, either at a polling station, 
or at the counting of the votes, who infringes the provision as to 
secrecy, or communicates to any person, before the poll is closed, 
any information he may have obtained, as to the name, or number 
on the register, of any elector, who has voted, or as to the official 
mark, or who interferes with a voter when marking his vote, or 
who induces a voter to di'splay his ballot paper, after he has 
marked it, will be liable, on summary conviction, before two 
justices, to imprisonment for any term not exceeding six months, 
with, or without, hard labor. 4 When no question is made as to 
the right of electors to vote, or as to the correctness of the pre- 
cinct returns, the failure of the officers of election to take the oath 
of office, will not justify the exclusion of the votes, on a contest of 
the election. 5 

1 McLaren v. Milne Home, 44 L. T. N. In the case of McFarland v. Purviance 
S. 289. (C. & H. 131), which was decided in 

2 lb. 1804, the committee reported that the 

3 35 & 36 Vict. c. 33. election officers of one of the counties 

4 Id. s. 4. had not only neglected but actually re- 

5 Stinson v. Sweeney, 17 Nev. 310 ; Mc- fused to take the oath of office, notwith- 
Craw v. Harralson, 4 Coldw. 34 ; Dishon standing the contestant required this at 
v. Smith, 10 Iowa, 212 ; Barnes v. Adams, the opening of the polls, and for that 
2 Bart. 764 ; People v. Cook, 4 Selden, reason they recommended that the elec- 
67; Taylor v. Taylor, 10 Min. 107; Key- tion in the county in question should be 
ser v. McKisson, 2 Bawle, 139 ; Weeks set aside. But the house, instead of 
v. Ellis, 2 Barb. 324 ; Greenleaf v. Low, adopting this report, referred it to the 
4 Denio, 168 ; People v. Cook, 14 Barb. committee of the whole, and on the 6th 
259 ; Whipley v. McCune, 10 Cal. 352 ; of March, 1804, discharged the commit- 
State v. Canvassers, 17 Fla. 9 ; Blair v. tee of the whole from its further consid- 
Barrett, 1 Bart. 308 ; Sheaf e v. Tillman, eration, and took no further action in 
2 id. 907 ; Botts v. Jones, 1 id. 73 ; Chap- the case. Although the contestant at the 
man v. Ferguson, id. 267. second session of the eighth congress 



366 



§ 432. Where it did not appear, either from the returns, or from 
the proofs, that the officers of election were sworn, and the only 
evidence of the number of votes, cast for the respective candidates, 
consisted of a statement that they were voted for, as candidates 
for congress, and that they received eleven votes and three votes, 
respectively, for the office of superintendent of public instruction, 
the committee, being unwilling to deprive the citizen of his vote, 
in consequence of the mistakes of others, unanimously allowed 
these votes. 1 Although the judges and clerks, at a general elec- 



renewed his attempt, the sitting member 
retained his seat until the expiration of 
his term. 

In the case of Botts v. Jones (1 Bart. 
73), which was decided in 1844, it was 
held that the omission of a part of the 
officers of election to take the required 
oath did not avoid the election, in a case 
where it appeared to have been fairly 
conducted. The committee said : 

" The sheriff, it appears, did not take 
the oath prescribed by the act of 1831, 
respecting elections, although he was 
sworn to fulfil the duties of his office 
when appointed. By that act it was 
made the duty of the sheriff to hold the 
elections in certain cases himself and to 
decide upon the legality of votes, and an 
oath was prescribed applicable to his 
then duties. Now, all the elections are 
required to be conducted by superintend- 
ents, who alone decide upon the votes 
and who are authorized to proceed with- 
out the presence of the sheriff, so that 
the oath prescribed has become inappli- 
cable to the duties to be performed by 
the sheriff if he thinks proper to attend, 
as it is still his duty to do. Two super- 
intendents, it appears, did conduct the 
election all the time at this precinct ; 
but it would seem that one of those who 
acted during a part of the day was not 
sworn. This was undoubtedly irregular 
and illegal ; but the committee are not 
prepared on that account to set aside the 
election as wholly null and void in a case 
where it appears to have been fairly con- 
ducted ; where the name of every voter 
and his vote is recorded, so that if either 
party objects to him, the other is required 
to prove him legally qualified to vote ; 
and where such objections have been 
actually made and the votes rejected, 
unless duly proven to be good." (Page 
78). 



. In Wright v. Fuller (1 Bart. 158), it 
was decided in 1852, that the question 
whether an election held by unsworn 
officers should be set aside depended 
on the character of the proceedings; 
that if there had been no " fraud or un- 
lawful misconduct," the vote would not 
be excluded ; but if the circumstances 
should be such as to indicate the prac- 
tising of "any fraud or contrivance to 
affect the result of the poll the election 
would be pronounced void. 

In Milliken v. Fuller (1 Bart. 176), 
the election at a certain precinct was 
held by officers who were not chosen 
according to law, having been elected in 
April, when by law they should have 
been elected in March. The report of 
the committee, which was unanimous, 
and which was adopted by the house, 
contains this language : 

' ' The committee is unanimously of the 
opinion that the persons officiating were 
officers de facto, acting in good faith, and, 
as no fraud is alleged, the votes from the 
district were rightfully counted for the 
sitting member." 

In the cases of Flanders and Hahn (1 
Bart. 443), the committee used this lan- 
guage : 

" The principal and only aim of the 
law is to secure fair elections, and the 
non-observance of directory provisions 
cannot annul an election carried on with 
all the essentials of an election and with 
perfect fairness." 

1 Miller «. Thompson, 1 Bart. 118. The 
house, on various grounds, overruled 
the committee in this case. 



367 

tion, fail to take the prescribed oath, or any oath, and no list of 
qualified voters is kept, as provided by law, and the judges are 
candidates, it is the duty of the canvassers to canvass the returns, 
and their certificate is prima facie evidence of the result of the 
election. The burden of proof is on the contestant, to show that 
the errors complained of affocted the result, or rendered it uncer- 
tain. l When the law authorizes the judges and clerks to admin- 
ister the oath of office to each other, the circumstance that one 
of the judges administered the oath to all the officers, except him- 
self, and one of the clerks also administered the oath to all the 
officers, except himself, so that all the officers, but two, were 
sworn twice, will not invalidate the oath. 2 An averment, in a 
notice of contest, that " in the first district of the city of Sacramento, 
where three hundred and nine votes were returned for McCune, 
neither the judge, inspector, nor clerk, conducting the election, 
was sworn as the law required," with no charge of fraud, or wilful 
neglect of duty, on the part of the officers, or of collusion between 
them and the candidate named, or 6i a majority in his favor, 
or of any benefit received by him from the returned vote of the 
precinct, is not a sufficient averment. The mere failure of the 
precinct officers to be sworn will not, of itself, invalidate an elec- 
tion. 3 

§ 433. The absence of a certificate of the administration of the 
oath is immaterial. 4 The legal presumption is that the oath 
required has been taken, every officer being presumed to have done 
his duty, and the burden of showing the neglect or omission is 
thrown upon the party taking the objection; but as the law of 
Virginia required that the oath should be duly returned by the 
magistrate, before whom it was taken, and should be filed in the 
clerk's office, a certificate, from the clerk, that no such oath had 
been filed, was sufficient, prima facie, to throw the burden of proof 
upon the party claiming the vote, he having been previously noti- 
fied of the objection. 5 Where the law requires the officers of 
election to transmit, with the returns, their certificate of the taking 
of the oath of office, and they omit to transmit such certificate, it 
will not be presumed that the oath. was administered. 6 Where the 

Baylor <o. Taylor, 10 Minn. 107. 4 Koontz v. Coffroth, 2 Bart. 138; 

2 State v. Sillen, 24 Kan. 13. Taliaferro v. Hungerford, C. & H. 250. 

3 Whipley v. McCune, 10 Cal. 352. 5 Draper v. Johnston, id. 702. 

6 Blair v. Barrett, 1 Bart. 308. 



368 

clerk certifies that a paper is a correct transcript of the poll-book, 
tally-sheet, and certificate of the return of the election, but makes 
no allusion to the certificates of the administration of the oaths 
of office, the transcript raises no presumption that the latter cer- 
tificates were wanting, or that the officers were not sworn. 1 Where 
the statute required the judges and clerks of election to take certain 
oaths, before entering upon their duties, and prescribed a form for 
the poll-book, which embraced a statement that the judges and 
clerks were duly sworn, before entering upon the discharge of their 
duties, it was held, by the committee, that the statute required the 
presence of such statement in the poll-book, and that its absence 
was a defect ; but whether it was or not a fatal defect they did not 
decide. 2 

§ 434. Where the oath of office was administered, to the judges 
and clerks, by an unauthorized person, it was held that, by taking 
the oath, in good faith, they became officers de facto and their acts 
were valid. 3 Where the officers of election included three judges 
and two clerks, and one of the judges administered the oath to 
himself, to the second judge, and to both clerks, and one of the 
clerks administered the oath to the third judge, it was held that 
two of the judges and both of the clerks Avere legally sworn, and 
that the election was valid. 4 The contestant contended that the 
entire vote of one county ought to be excluded because the clerks 
were not sworn before the election commenced, as required by law, 
to " take the poll fairly and impartially," but, after the election, 
examined and subscribed the poll-book and made affidavit, thereon, 
" that the same did contain a just and true account of the votes 
taken at the said election to the best of their knowledge and belief," 
and because the names of the voters were not written on the poll- 
books, in separate columns, under the names of the respective 
candidates, but were written in a single column, with correspond- 
ing marks under the names of the candidates. The committee 
overruled these objections. 5 The absence of a record of the 
administration of the oath of office to the officers of election, 
when the law does not require such record to be made, will not 
raise a presumption that such oath was not administered. 6 

1 Fuller v. Dawson, 1 Bart. 126. 4 Fuller v. Dawson, 2 Bart. 126. 

2 Burch v. Va Horn, 2 id. 205. 5 Porterfield v. McCoy, C. & H. 267. 

3 Kooutz v. Coffroth, id. 138. 6 Morton v. Dailey, 1 Bart. 402. 



369 

§ 435. But, in Massachusetts, it is essential to the validity of an 
election that the selectmen, by whom it is conducted, shall have 
been-previously sworn to the faithful discharge of the duties of their 
office. 1 When, however, the selectmen failed to take the oath of 
office, upon issuing the warrant for the election, but took it on the 
day of election, after opening the town meeting, their action was 
held to be a sufficient compliance with the statute. 2 The inspect- 
ors and clerks of the election, in one of the counties of a district, 
not only neglected, but refused, to take ' the oath prescribed by 
law, although requested to do so by the contestant, at the opening 
of the polls ; and this was held, by the committee, to be a suffi- 
cient ground for setting aside the election in that county. 3 The 
neglect of the sheriff, or other officer conducting the election, to 
take the oath required by law, has been held to vitiate the poll for 
the particular precinct or county, so that the whole vote of such 
precinct or county was to be rejected. 4 The omission of the judges 
of election to take the oath prescribed by law has been held a suffi- 
cient ground for the rejection of their returns. 5 

§ 436. The rule of the common law is that public agents may 
act by majorities, provided all are present, or have proper notice 
to be present. 6 A decision, announced by the presiding officer 
of elections, without dissent on the part of the others, is the 
decision of the whole board. 7 

§ 437. The right to send a representative to the legislature of 
the state of Massachusetts may be exercised, or waived, by the 
several towns, at their pleasure. If the selectmen refuse to put a 
motion, regularly made and seconded, in town meeting, " that the 
town send no representative," or " to see if the town will choose 
a representative," but call for and receive votes for a representa- 
tive, the election will be void. 8 It is the duty of selectmen, 
presiding at a meeting for the choice of representatives to the 
legislature of Massachusetts, to give a reasonable time, before 
proceeding to the election, for the town to exercise its corporate 

Thompson's case, C. S. & J. 302. * Draper v. Johnston, C. & H. 702. 

2 Leighton's case, id. 166. 5 Otero ■». Gallegos, 1 Bart. 177. 

3 McFarland v. Purviance, C. & H. 133. "Wilson v. School District, 46 Conn. 
This question was not decided by the 400 ; Austin v. Helms, 65 N. C. 560. 
house. The sitting member, having a 7 Thompson's case, 0. S. & J. 226. 
majority in the rest of the district, 8 Gardner's case, id. 195. 

retained the seat. 
24 



370 

right to determine whether any, and how many, members shall 
be chosen ; and, when they do not allow such reasonable time, but 
proceed with the election, notwithstanding a motion made and 
seconded as to the number to be chosen, the election is void. 1 
If the selectmen, before proceeding to an election of representa- 
tives to the legislature of Massachusetts, refuse to allow reasonable 
debate, upon the question to what extent the town will be repre- 
sented, the election will be void. 2 A town having voted, at a legal 
meeting for the choice of representatives, not to elect, and dissolved 
the meeting, a second meeting was called, for the same purpose, at 
which a motion not to send was made, and seconded, and declared, 
upon a division of the meeting, to be decided in the affirmative. 
A motion was then made, and seconded, to dissolve the meeting ; 
immediately after which the vote not to send representatives was 
disputed. The selectmen refused to put the motion to dissolve 
the meeting ; but a motion to send a representative being then 
made, seconded, and carried, an election was thereupon effected. 
It was held to be void. 3 

§ 438. At a meeting for the choice of a representative, the 
selectmen refused to submit to the voters a motion, regularly 
made, and seconded, that no representative should be sent, and 
also refused to hear any debate on the motion, and ordered the 
voters to bring in their votes. The voters, insisting upon their 
right to debate the motion, the chairman of the selectmen ordered 
the sheriff to read the riot act. The act was read, and about/ one- 
half of those present left the meeting. During these proceedings, 
and afterwards, votes were received, being handed from one to 
another, until they reached the ballot-box. The election was 
declared void. 4 At a town meeting, for the choice of one or more 
representatives, the selectmen stated that the town was entitled 
to four, and called on the voters to bring in votes for from one to 
four. A motion was made, and seconded, to send two, and no 
more ; but the selectmen refused to put the motion, or to permit 
debate upon it. Great excitement followed this decision, in the 
midst of which a motion to adjourn was made, and seconded ; but 
the selectmen refused to put that motion, one of them giving, as 

1 Codman's case,C. S. & J. 221 ; Fenno's : Wolcott's case, C. S. & J. 215. 
case, id. 644. 4 Gardner's case, id. 180. 

2 Thompson's case, id. 226. 



371 

a reason for such refusal, that there were votes in the ballot-boxes. 
Many voters left the meeting ; others refused to vote. Four persons 
were declared elected. It was held that the election was not free, 
and was therefore void. 1 

§ 439. If a town vote not to send a representative to the state 
legislature, an election cannot be made by a minority, dissenting 
from that vote. 2 An election of representative to the legislature 
of Massachusetts, by a minority of the electors present, after the 
reconsideration of a vote not to send representatives, is void. 3 
An election of a representative, by the vote of a majority of those 
present, made after a vote not to send, does not become valid, 
upon a reconsideration of the vote, after the election. 4 

§ 440. The inhabitants of a town, entitled to send two repre- 
sentatives to the legislature of Massachusetts, having voted to 
send only one, the selectmen proceeded to receive votes for such 
representative. While the balloting was in progress, it was, on 
motion, voted to reconsider the first vote, and to send two repre- 
sentatives. The balloting was then resumed, and an election of 
one representative was effected. The selectmen then proceeded to 
receive votes for a second representative. The election of the second 
representative was held to be valid. 5 It is competent for a town 
meeting, after having voted not to send representatives, to adjourn 
to the next day, for the purpose of reconsidering that vote ; and 
an election of representatives, effected at such adjourned meeting, 
without any further vote on the reconsideration, is valid. 6 Where 
two members were chosen, in a town, which, from a certificate 
of the assessors thereof, as to the number of persons actually 
taxed therein, did not appear to contain ratable polls enough 
to entitle it to two members, and one member only was returned, 
the returned member was allowed to retain his seat. 7 A motion 
made, and laid on the table of the selectmen at a town meeting, 
that the town do not proceed to the choice of a representative, at 
this meeting, may be considered as waived, if subsequent motions 
are, without objection, made and acted upon, and the former 

1 Draper's case, C. S. & J. 157. 5 Cooledge's case, C. S. & J. 233; 

2 Opinion of the Justices, id. 117; Wetherbee's case, id. 59. 
Nantucket case, id. 198. s Warren's case, id. 403. 

3 Fearing's case, id. 231. 7 Freetown case, id. 72. 

4 Hayden's case, id. 201. 



372 

motion is not renewed, or, in any way, called up, or discussed. 1 
§ 441. The poll is opened when the ballot-box is presented to 
the voters for the reception of their ballots. 2 Upon the opening 
of the polls, in England, as soon as the presiding officer has gone 
through the formalities of exhibiting the ballot-box empty, to such 
persons as may be present in the polling station, and has locked 
and sealed it, and put it in place, it is competent for any elector, 
whose name is on the register of voters, for the time being in force, 
to enter the polling station allotted to him, and demand a ballot 
paper. 3 A statute requiring the polls to be kept open, between 
certain designated hours, is directory ; a departure from the strict 
observance of its provisions does not necessarily invalidate the 
election, when it appears that no fraud has been practised, and no 
substantial right violated. 4 A delay of more than two hours, 
after the time appointed to open a meeting, for the choice of rep- 
resentative, was held to constitute no objection, to the validity of 
the election. 5 In English counties the poll is opened at eight 
o'clock a. m., and must be kept open until five p. m., on the same 
day, when it is to be finally closed, unless adjourned before that 
hour in consequence of riot or open violence. 6 In English 
boroughs the poll is opened at eight a. m. and must be finally 
closed at four. p. m. on the same day, unless adjourned before that 
hour, in consequence of riot or open violence. 7 In Scotch elec- 
tions, except for Orkney and Shetland, the polls are open from 
eight a. m. to four p. m., but may be closed sooner, by consent of 
candidates and officers. 8 In Ireland they are open from eight a. 
m. until 5 p. m. 9 The opening and closing of the poll, at hours 
other than those specified in the various acts of parliament, has 
been held not to vitiate the election, when the result was not 
affected by it. 10 

§ 442. But under a statute requiring the polls to be opened 

1 Haws v. Darling, L. & R. 18. ° 25 & 26 Vict. c. 62, s. 4. 

3 Richardson's case, C. S. & J. 551. I0 Limerick case, P. & K. 373 ; S. C. C. 

3 35 & 36 Vict. c. 33, rule 23 ; id. s. 7 ; & R. 548. But it seems that the onus 
id. rule 18. is on the respondent to show that the 

4 Fry v. Booth, 19 Ohio St. 25. result of the election has not been af- 

5 Hasty's case, G. S. & J. 82. fected by closing the poll too soon, and, 
6 16 Vict. c. 15, ss. 2,3. in the absence of such proof, the elec- 
7 5 & 6 W. 4, c. 36, ss. 2, 8. tion may be avoided. Harwich case, 1 
8 16 Vict. c. 28, s. 9 ; 5 & 6 W. 4, c. 78, P. R. & D. 314. 

s. 5. 



373 

between six and seven o'clock, in the forenoon, a delay in opening 
the polls until two o'clock, in the afternoon, is fatal to the precinct 
return. 1 Where it is clearly shown that the polls were not opened 
until three hours after the time fixed by law, the burden of proof 
is upon him, who seeks to uphold the election, to show that the 
result of the election was not affected by such irregularity. 2 
Under a statute of California, requiring the polls to be opened 
"at one hour after sunrise, on the morning of the election," and 
to be kept open until sunset, 3 it was decided that an election, held 
for the purpose of imposing a tax in a school district, must be held 
in strict conformity with the law, and that, where the notice was 
to the effect that the polls would be open only between the hours 
of one and -six o'clock in the afternoon, and in fact the polls were 
only kept open between those hours, the election and the tax im- 
posed were void. 4 An election effected at a balloting, which 
commenced after sunset, was held void, under the statute 5 of 
Massachusetts. 6 

§ 443. Where the owner of the house designated by the super- 
visors, for holding the election, refuses to permit his house to be 
used for that purpose, and the election is held at another place, 
near to, and in plain view from,. the house designated by the super- 
visors, but it does not appear that any voter has been misled, or 
deprived of his vote, by reason. of the change, the vote of the pre- 
cinct will not be rejected. 7 No poll may be held, in English or 
Scotch elections, at any inn, hotel, tavern, public house, or other 
premises licensed for the sale of beer, wine, or spirits, or in any 
place directly communicating therewith, unless by consent of all 
the candidates, expressed in writing. 8 There is no such statutory 
restriction as to Ireland. 9 The borough may be divided into poll- 
ing districts, at the discretion of the local authorities, and the 
number of polling stations, in each polling district, is to be fixed, 
as in the case of a county, by the returning officer. But each poll- 
ing district must have at least one polling station, and when a 
borough comprises two or more towns, each town must have its 

1 Melvin's case, 68 Penn. St. 333. 6 Tilden's case, C. S. & J. 518 ; Shedd's 

2 Yeates v. Martin, 1 Ells. 384. case, id. 640. 

political Code Cal. s. 1160. 7 Preston v. Culbertson, 58 Cal. 198. 

4 People v. Scale, 52 Cal. 620. 8 16 & 17 Vict. c. 68, s. 6 ; 16 Vict, c, 

5 Stat. Mass. 1839, c. 42, s. 3. 28, s. 4. 

9 Bushby, 25, note, 



374: 

polling station. * The laws of the United States provide a way in 
which persons, having a right to vote for presidential electors, or 
representatives in congress, can make that right available, when 
it is denied at the regular polls, held by legally appointed officers. 
The denial of the right, at the regular polls, to large numbers of 
electors, will not legalize the organization of separate polls, under 
officers not appointed according to law. 2 

§ 444. The ballot-box, in England, is to be so constructed as to 
render it practicable to insert, but not to withdraw, the ballot 
papers, without unlocking the box. B A ballot, which was deposited 
in a cigar box, on account of the failure of the proper officers 
to provide a ballot-box, should be counted. 4 

§ 445. In the absence of a statutory provision to that effect, 
the mere position of the ballot-box, without resulting injury, will 
not invalidate an election. 5 In the absence of fraud, the fact that 
the ballot-box was not kept exposed to public view, during the 
recess at noon, will not vitiate the election. 6 An averment that 
the officers of election " permitted the ballot-box. to be removed 
from the room, in which the election was held, before the ballots 
were counted ; and the said ballot-box, when removed as aforesaid, 
was left in the charge of a person, who was neither judge, inspector, 
nor clerk, of said election," is not a specification of a valid ground 
of contest. 7 It is highly reprehensible misconduct, on the part of 
judges of election, to leave the ballot-box unsealed and unguarded, 
in a room occupied by, or accessible to, persons not officers of 
elections. It is a serious question whether the returns ought not 
to be rejected, even in the absence of proof tending to show that 
the box was tampered with. In the presence of such proof the 
returns will be rejected. 8 When the ballot-box, with the ballots 
and all the papers pertaining to the election, were left open, through 
the night, in a drinking saloon, in charge of no one except the 
keeper of the saloon, who was a supporter of one of the candidates, 
and was not an officer of the election, nor authorized, by law, to 
take charge of the ballot-box, and the ballots were counted and 
canvassed, the next day, by some of the officers of the election 

1 35 & 36 Vict. c. 33 ; 30 & 31 Vict. c. 6 Augustin ». Eggleston, 12 La. An. 

102, s. 34. . 366. 

2 Gause v. Hodges, Smith, 291. 6 Finley v. Walls, Smith, 367. 

3 35 and 36 Vict. c. 33, rule 23. 7 Whipley v. McCune, 12 Cal. 352. 

4 Smith v. Shelley, 2 Ells. 18. 8 Cox v. Strait, Smith, 428. 



375 

and other un authorized persons, their return was rejected, although 
a witness testified that officers of the election had stated to him, 
on the night of the election, after a count of the ballots, that one 
of the parties received the majority which was afterwards set forth 
in the return. 1 A witness, who had testified respecting the condi- 
tion of the ballot-box and ballots, when delivered to the custodian, 
and the manner in which they had been kept, after the canvass, 
was asked whether, in his opinion, there had been any tampering 
with the ballot-box. On objection his opinion was excluded. The 
supreme court, on appeal, said : " While it would not have been 
error to have admitted the answer, yet, since all the facts, upon 
which the 'opinion of the witness must have been grounded, were 
given to the court, who tried the question of fact, we could not 
interfere with his judgment simply because he had refused to hear 
the opinion of the witness." 2 

§446. The use of two ballot-boxes, at a precinct election, is not 
fatal to the election, unless made so by statute. 3 But the use of 
four ballot-boxes in four separate places, and with four complete 
sets of election officers, in what could legally be only one voting pre- 
cinct, was in violation of the spirit and intention, as well as the 
letter, of the law of Georgia, which provided that there should not 
be more than one voting precinct in each militia district. 4 In a 
case where, under the state law, the legality of the use of two bal- 
lot-boxes was doubtful, and the second box was used only during 
the earlier part of the day, many electors, who had voted at that 
box, having subsequently voted at the other, the second box was 
rejected by the committee of elections of the house of represent- 
atives. 5 If the intention of the elector can be ascertained, it is 
not to be defeated merely because the inspector, through mistake, 
or fraud, deposits his ballot in the wrong box, nor because the 
elector himself, by mistake, without fraud, places it in the wrong 
box. 6 When ballots, intended for the congressional box, were, by 
mistake, deposited, by the judges, in the legislative box, and vice 
versa, and the judges, at the close of the election, undertook to cor- 
rect the mistake by transfers of ballots, the committee, distin- 
guishing the case from that of Washburn v. Ripley, 7 in which, as 

1 Le Moyne v. Farwell, Smith, 406. 5 Norris v. Handley, Smith, 68. 

2 Mcintosh v. Livingston, 41 Iowa, 219. 6 People v. Bates, IX Mich. 362. 
3 Stovall v. Cabell, 2 Ells. 667. 7 Post s. 447, 

4 Sloan v. Rawles, Smith, 144. 



376 

they understood, the electors themselves, instead of the judges, 
deposited the ballots in the box, left it to the house to decide 
whether the return of the judges should be accepted. 1 Assuming 
that the state law, rightly construed, required that two ballot-boxes 
should be kept, at each poll, and that all ballots, for representa- 
tive in congress, should be deposited in one, and all ballots, for 
electors of president and vice-president, in another, the committee 
were of the opinion that the statute was directory only, and that 
the failure to provide two ballot-boxes, and the deposit of all the 
ballots in one box, did not, in the absence of fraud, render the elec- 
tion void. If the ballots were freely cast, honestly and fairly counted, 
and correctly returned, they would have been unwilling to hold 
that a mere mistake of the election officers, in the decision of the 
question whether the ballots should go into one box, or two, should 
be allowed to defeat the will of the majority. 2 

§ 447. A majority of the whole number of votes cast being neces- 
sary *to a choice, under the statutes of Maine, the returns of an 
election, held in September, 1828, showed that the contestant 
received 2,495 votes, and twenty-two other persons 2,499 votes, 
2,498 being necessary to a choice. The contestant wanting three 
votes of a majority, the governor and council, in pursuance of the 
statute, directed a new election, at which second election, held in 
December of the same year, the sitting member received a majority 
of the votes. Having obtained the certificate of election, accord- 
ingly, he took his seat in the house. The contestant claimed that 
he had in fact received a majority, at the first election, in September, 
and had been legally chosen at that election ; that a governor, 
senators and representatives in the state legislature, and county 
treasurers were voted for, on the same day, with a separate ballot- 
box for each office, but without any designation of the office, on the 
ballot itself ; that ballots cast for eight of the persons mentioned 
were intended for the ballot-boxes assigned to the office of repre- 
sentative in the state legislature, for which they were candidates, 
and were, by mistake, deposited in the boxes appropriated to the 
office of representative in congress, for which these eight persons 
were not candidates; that the votes given to three others of the 

1 Newland v. Graham, 1 Bart. 5. In of the contestant ; but the house declared 
this case the committee reported in favor the seat vacant. 

2 Boyden v. Shober, 2 Bart. 904. 



377 

persons mentioned were intended for the ballot-boxes assigned to 
the office of treasurer, for which they were candidates, and were, 
by mistake, deposited in those assigned to the office of represent- 
ative in congress ; that the ballots counted for three others of the 
persons mentioned, were intended for the box appropriated to the 
office of state senator, and that these three persons were candidates 
for the office of state senator, and were not eligible to the office of 
representative in congress, because not residents of the congres- 
sional district. The committee unanimously decided that, when 
the votes were taken by ballot, and separate boxes were used, 
after they were deposited in the boxes, it was not proper, or com- 
petent, for the voters, or selectmen, to alter or change the ballots ; 
that the intention of the voter was to be ascertained from the box 
in which his ticket was deposited ; that the selectmen, conducting 
the election, at the places above specified, acted correctly in mak- 
ing out their return to the governor and council of all the ballots 
they found in the box which was used for the reception of ballots 
for representative in congress, and in refusing to count, for the 
contestant, the ballots which they found containing his name in 
other boxes. 1 

§ 448. The statute of Virginia, regulating elections, contained the 
following provisions : " The clerks of the polls shall enter in dis- 
tinct columns, under the name of the person voted for, the name 
of each elector voting for such person." It was decided, by the 
house, that the entry of all the names of voters, in one general 
column, on the left-hand margin of the poll-book, with figures in 
numerical order, or straight marks, opposite the voters' names, 
and under those of the candidates, indicating for whom the votes 
were given, was not fatal to the election, although the certificate 
of the administration of the oath was wanting, and only the initial 
letter of the candidate's christian name was given. 2 If the mili- 
tary election law require the transmittal of a poll-book, tally-list, 
and return proper, in each case, the vote will not be allowed, in 
the absence of other proof, if all of these, or the two last, be 
without signature, or if the poll-book be signed only by the judges, 
and the tally -list by the clerks, and, the return proper be wanting. 3 
It was provided, by the statute of Ohio, that the poll-book, con- 

1 Washburn v. Kipley, C. & H. 679. 3 Fuller v. Dawson, 2 Bart. 126. 

2 Taliaferro v. Hungerf ord, id. 250. 



378 

taining the names and number of the electors, signed by the judges, 
and attested by the clerks, with a certificate of the administration 
of the oath to the judges and clerks, attached thereto, should be 
transmitted, from the voting places in the field, to the state author- 
ities, together with the ballots and the tally-sheet, exhibiting the 
number of votes cast for each candidate, opposite his name, cer- 
tified by the judges and attested by the clerks, and also that the 
state canvassers should open and canvass the poll-books, tally-sheets, 
and ballots, and declare and certify the number of votes shown, 
by the tally-sheets, to have been cast for each candidate. The 
committee held that the result was to be declared from the tally- 
sheets alone ; that the poll-book, not showing for whom any votes 
were cast, could not determine the result ; that the tally-sheets, if 
complete, afforded prima facie evidence of the result of the elec- 
tion, the force of which was not to be impaired by defects in the 
poll-book ; and that the provisions, requiring the poll-book to be 
signed at the foot, and the whole number of votes to be stated, 
were directory, and not mandatory. 1 

§ 449. When voters' names appear on original registration 
books, but do not appear on copies furnished to precinct judges, 
it is error to reject their votes, and their votes will be counted, 
if it be shown for whom they would have voted. 3 Under a 
statute, declaring that the canvassers shall not " refuse to include 
any returns in their estimate of votes, for any informality in hold- 
ing any election, or making returns thereof, but all returns shall be 
received, and the votes canvassed, by such canvassing board, and 
included in the abstracts, provided there is a substantial compli- 
ance with the provisions of this chapter," 3 the use of registered poll- 
lists is not essential to the validity of an election. The concluding 
proviso does not change the effect of the statute. 4 Where the 
election was held on the sixth of November, 1866, under a statute 
requiring the officers of registration to deposit the original books 
of registration, " as soon as maybe," with the clerk, the committee 
were not prepared to say that a failure so to deposit them until 
after January 3, 1867, would render the election void. 5 Where it 
was provided, by law, that, as soon as any person should have 

'Follett v. Delano, 2 Bart. 113. 4 Edson & Child, 18 Minn. 64. 

2 Bell v. Snyder, Smith, 247. 5 Hogan v. Pile, 2 Bart. 281. 

3 Gen. Stat. Minn. c. 1, s. 40. 



379 

voted, the judges of election should write the word " voted " 
opposite his name, on an alphabetical list of voters, furnished by 
the officer of registration ; but the judges, finding such list incon- 
venient, because arranged alphabetically only with reference to the 
first letter of the name, caused a list to be arranged alphabetically 
with reference to two letters, each name having the same number 
which it had on the original list, and both lists were present at 
the polls ; it was held that the election was not rendered void by 
the use of the second list. 1 A list of voters, prescribed by law, for 
use at the polls, is an official document, and constitutes the best 
evidence to prove that a particular name was, or was not, on the 
list. A party cannot show, by parol, that his name was on the 
list, without previous notice to produce it. 2 

§ 450. A new town was erected out of territory of two old towns, 
under an act providing that, for the purpose of electing repre- 
sentatives in the state legislature, the new town should remain, for 
a certain time, a part of the old towns, and that the selectmen of 
the new town should deliver, to the selectmen of the old towns, at 
least seven days before the election, lists of the voters entitled to 
vote in those towns. It was held that a failure to deliver the list, 
until the day before the election, did not invalidate the election, 
although such failure gave currency to a rumor that no voters 
would be permitted to vote in one of the old towns. 3 The failure 
of the county commissioners to furnish the officers of election with 
a correct copy of the list of resident taxables, as required by law, 
in one of the precincts, will not justify the rejection of the entire 
poll of the precinct. 4 

§ 451. A statute requiring a person, who has not been regis- 
tered as a voter, not only to show, by his own affidavit, that he is 
an inhabitant of the district, in which he offers to vote, but also, 
in addition, to establish such fact by the affidavit of a " householder 
and registered voter " of the district, is reasonable and within the 
power of the legislature, and is not calculated to abridge the elec- 
tive franchise. In such case, the fact that the person, so offering 
to vote, was well known, to the judges of the election, to have 
resided in the district, and to have previously voted therein, does 

1 Hogan v. Pile, 2 Bart. 281. 3 Harding's case, L. & E. 175. 

2 Harris v. Granville, 4 Gray (Mass.), 4 Wheelock's case, 82 Penn. St. 297. 

433. 



380 

not dispense with the proof required by the statute. An action 
will not lie against the judges of election, for refusing the vote of 
a person, not registered as a voter, who fails to make the proof 
required by the statute. The fact that their refusal was placed 
on untenable grounds will not affect their liability. 1 Under a 
statute declaring that '- no man shall be permitted to vote, at the 
election on that day, whose name is not on said list, unless he 
shall make proof of his right to vote," 2 preliminary proof of 
qualification is necessary to constitute an unregistered elector a 
legal voter. If the proof be not made before the vote is received, 
it cannot be made on the trial of a contested election, so as to 
legalize the vote. The statute so construed is not in conflict with 
a constitutional provision that " no elector shall be deprived of 
the privilege of voting, by reason of his name not being regis- 
tered." 3 In every English, or Irish election, the returning officer, 
if required on behalf of any candidate, may ask any voter, at the 
time of tendering his vote, but not afterwards, whether he is the 
same person, for whom a designated name on the register was 
intended, and whether he has already voted anywhere at the elec- 
tion, and he may be required to make oath on these points ; and, 
if the voter refuse to answer, or, by his answer, make it to appear, 
to the returning officer, that he is not the person, whose name is 
on the register, or that he has voted before, his vote will be re- 
jected. 4 In Scotland no question can be put, but at county elec- 
tions the oath may be required. 5 Under a statute authorizing 
persons, whose names have been stricken from the registration 
list, to vote, on making oath that their names had been " improp- 
erly stricken " therefrom, the absence of a voter's name from the 
registration list will not invalidate his vote, but it will be pre- 
sumed, in the absence of proof to the contrary, that he was 
qualified by taking the prescribed oath. 6 

§ 452. Under the law, of Massachusetts, if the inhabitant's of a 
town vote, before balloting for a representative, to dispense with 
the check list, an election, effected at such balloting, will be void. 7 
An election, which was made without checking the names of the 

a Byler v. Asher, 47 111. 101. 6 24 & 25 Vict. c. 83, s. 45, and Sched. 

2 Stat. Penn. 1874, p. 35. D as amended by the repealing sched- 

3 McDoncmgh's case, 105 Penn. St. 488. ule of the ballot act. 

4 6 Vict. c. 18, ss. 81, 82 ; 13 & 14 Vict. °Finley v. Bisbee, 1 Ells. 74. 
c. 69, s. 88. 7 Parker's case, C. S. & J. 422. 



381 

voters, was held void, although it appeared that the selectmen 
knew every man, whose name was on the list, and stood by the 
box during the balloting, with the list before them, and made oath 
that no person voted whose name was not on the list, and had not 
been called at the previous balloting. 1 But in defence to an 
action, by a town, for a tax assessed on the defendant by persons 
chosen, sworn, and acting as assessors, it is not open to the 
defendant to impeach the validity of their election, on the ground 
of an omission to use check lists in the balloting, in accordance 
with a statutory requirement that " no person shall vote, at an 
election, whose name has not been previously placed on such list ? 
nor until the presiding officers find and check his name thereon." 2 
They are officers de facto, and the validity of their acts cannot be 
questioned in proceedings to which they are not parties. 3 And if 
the failure to use a check list do not occasion the reception of 
illegal, or the rejection of legal, votes, or involve fraud, it will not 
invalidate the election. 4 

§ 453. The statute regulating the exercise of the right of suf- 
frage, by voters in the military service of the United States, 
contained the following provision : " All votes shown, by the 
tally-sheets, to have been cast under the authority of this act, shall 
be counted with the returns of county, state, congressional, and 
presidential, elections, received from the several polls within the 
county, and be included in the general abstracts. 5 It was held 
that, in a contest, such a tally-sheet, if regular in form, was prima 
facie evidence of the votes therein indicated. 6 Poll-books, or 
tally-sheets, are not invalidated by the failure of the judges or 
clerks of election to sign them. The mistake may be corrected 
by parol proof, upon the trial of the contested election, and the 
document, when corrected and sustained by parol proof, is compe- 
tent evidence of the result of the election. 7 If the tally-sheets, 
on which the precinct returns are based, were made out, not by the 
officers of election, as required by law, but by unsworn by-standers, 
the returns will be rejected, in the absence of proof of their correct- 
ness. 8 

1 Moody's case, C. S. & J. 506. 6 Stat, Ohio, Mch. 30, 1864, s. 17. 

2 Gen. Stat. Mass. c. 7,'s. 9. 6 Howard v. Shields, 16 Ohio St. 184. 

3 Sudbury «. Heard, 103 Mass. 543. 7 lb. 

* Brigham's case, C. S. & J. 392 ; Dar- 8 Spencer v. Morey, Smith, 437. 

ling's case, id. 295 ; Robinson's case, id. 
597. 



CHAPTER XX. 



PROCEEDINGS— Continued. 



Secs. 

1. Ballots. 

(1) Formal requisites . . 454-456 

(2) Mode of depositing . . 457 

2. Challenge of voters . . 458-460 

3. Oaths of voters .... 461 

4. Voting by instalment ; by proxy ; 

change of vote ; pairing . . 462 

5. Recess, or adjournment, pending 

election . ' . . . 463-465 



Secs. 

6. Withdrawal of candidate . . 466 

7. Violence and intimidation 467-471 

8. Undue influence . . . 472 

9. Military interference . 473-476 

10. Election held in only part of 

district 477 

11. Exclusion of candidate from 

polls . . . . .478 



§ 454. In the United States the formal requisites of the ballot 
are prescribed by state laws. In the absence of statutory 
prohibition, candidates for all the offices to be filled, at a town 
meeting, may be voted for on one ballot. 1 Under a statute pro- 
viding that the county officers, for each county, viz., treasurer, 
register of deeds, surveyor, five commissioners, coroner, and 
sheriff, " shall be voted for, on one ballot," 3 the electors, although 
not permitted to vote, for different county officers, on separate 
tickets, are not required to vote for candidates for all the offices, 
and, if a ballot be found, in the box, containing only a single name, 
it is to be counted, unless it appear that the person, who voted it, 
also voted for other candidates, on another ballot, in which case 
all his ballots are to be excluded. 3 A ballot, written or printed 
on colored paper, cannot be received, under a statute requiring 
all ballots to be " written or printed on plain white paper." 4 
At an election, for any English county, or borough, represented by 
three members, no elector can vote for more than two candidates. 5 
In Mississippi the statute, which prescribes the kind of tickets to be 
used at general elections, does not apply to elections of town officers 
unless made applicable by special enactment. 6 

§ 455. It is provided by statute, in England, that " every burgess, 
entitled to vote in the election of councillors, may vote * by 



1 State v. Harris, 52 Verm. 216. 

2 Bat. Rev. c. 52, s. 18. 

3 Wilson v. Peterson, 69 N. C. 113. 



4 State v. McKinnon, 8 Oregon, 493. 

5 30 & 31 Vict. c. 102, s. 9. 

8 Harrison v. Greaves, 59 Miss. 453. 



382 



383 

delivering to the mayor and assessors, or other presiding officer, 
* a voting paper containing the christian names and surnames 
of the persons, for whom he votes, with their respective places of 
abode and descriptions, such paper being previously signed with 
the name of the burgess voting, and with the name of the street, 
lane, or other place, in which the property, for which he appears 
to be rated, on the burgess-roll, is situated." 1 It was held, by the 
court of queen's bench, that, in order to satisfy this statutory pro- 
vision, the name of the burgess voting must so appear, on the face 
of the voting paper, as to show clearly that the voter's name was 
intended, and further, that the name must be connected with the 
name of the street, lane, or other place, in which the property was 
situated. 2 A statutory requirement that voting papers, for the 
election of aldermen, shall show the " place of abode " of the per- 
son voted for, is not satisfied by a designation of the house where 
the person voted for carries on the business of a bookseller, sleep- 
ing elsewhere. 3 Any voter, who inadvertently spoils his ballot 
paper, may return it to the presiding officer, who, when satisfied 
of the inadvertence, will issue another ballot paper, in place of the 
one which has been spoiled, and the spoilt paper will be imme- 
diately cancelled. 4 

§ 456. A statute of Alabama, which authorized the commis- 
sioners' courts, of certain counties, " to lay off said counties into 
four commissioners' districts," contained the following provision : 
" The qualified voters of said counties shall elect one commissioner, 
for each district, whose service shall commence at the expiration 
of the terms of the present incumbents, and said commissioners 
shall reside in the district for which they are severally elected." 5 
In a case, which arose under this statute, the question was whether 
the four candidates, who received the most votes, or the candidates 
who received the highest number of votes cast for residents of the 
respective districts, were chosen. The court held that the key, 
for the interpretation of the statute, was furnished by the require- 
ment that the commissioners " shall reside in the district for which 
they are severally elected," which showed that, although chosen 
by the electors of the entire county, they were, nevertheless, chosen 

1 5 & 6 W. 4, c. 76, s. 32. 4 35 & 36 Vict. c. 33, rule 25. 

2 Regina v. Tait, 1 El. & El. 618. 5 Stat. Ala. Jan. 29, 1879. 

3 Regina ». Deighton, 1 Dav. & Mer. 
682. 



384: 

for particular districts, and that the voters' ballots were to designate, 
not only the names, but also the districts, of the respective candi- 
dates. 1 

§ 457. The mode of depositing ballots, in the United States, is 
prescribed by the laws of the several states. Generally the ballot 
is placed in the hand of one of the officers of election, by the 
voter, and is deposited in the ballot-box, by the officer. Where 
the law provides for voting by ballot it is unlawful for the judges 
to read aloud, or to open the ballots of electors. 2 Where a sick 
person is brought, in a carriage, to the window of the house, in 
which the election is held, and offers his ballot to one of the judges, 
who extends his hand through the window, to receive it, but is 
unable to reach it, and a by-stander hands it to the judge, in whose 
sight it remains until received by him, the vote cannot be rejected, 
on the ground that it was not personally delivered. 3 The proper 
mode of voting, in England, is for each elector, upon receiving a 
ballot paper from the presiding officer, to proceed forthwith into 
one of the compartments, in the polling station, and there place a 
cross upon the right-hand side of the ballot paper, opposite the 
name of each of the candidates for whom he votes. He must then 
fold it up, so as to conceal his vote, and yet show the official mark 
on the back of it ; and, leaving the compartment, without showing 
the face of the paper to any person, he must exhibit the official 
mark on the back to the presiding officer, and then, in the presence 
of the presiding officer, put the ballot paper into the ballot-box, 
and forthwith quit the polling station. 4 If a man, who is not a 
legal voter, deposit a ballot in the ballot-box, before the presiding 
selectman has time to forbid him, it will be the duty of the select- 
men to withdraw such vote from the box. 5 

§ 458. Under a constitution, prescribing certain qualifications 
and disqualifications for voters, and a statute authorizing the 
officers of election to interrogate a challenged voter, under oath, 
on certain specified points, and to ask " such other questions as 
may tend to test his qualifications, as a resident of the town, 
or ward, citizenship, and right to vote at that poll," 6 the jurisdic- 

1 State v. Nicholson, 66 Ala. 181. 5 French's case, C. S. & J. 257. 

2 Otero v. Gallegos, 1 Bart. 177. 6 Stat. N. Y. 1842, c. 130, title 4, art. 2, 

3 Clark v. Robinson, 88 111. 498. s. 14. 

4 35 & 36 Vict. c. 33, rule 25. 



385 

tion and authority of the officers of election are restricted to such 
inquiries as touch the qualifications, or disqualifications, specified 
in the constitution. 1 A statutory provision that " when a voter 
is challenged, at the polls, on the day of election, the judges of 
election shall require said voter, before being allowed to vote, 
to prove to their satisfaction, by the oaths of other persons of 
credibility, known to them, the fact of the said voter being of lawful 
age to vote^the fact of his residence for twelve months in the state, 
and of his residence for ninety days, next preceding the election, 
in the lot, in the block, and in the ward specified in the regulation 
book," 2 is a practical denial of the right to register and vote, and 
is void. 3 A returning officer's deputy has no authority to inquire 
into an objection to a vote tendered to him, otherwise than by 
putting to the voter the questions prescribed in the statute. 4 
Where, in the election of a member of parliament, the plaintiff's 
vote was, upon objection, excluded by the returning officer's deputy, 
as being the vote of a paid agent of the candidate for whom it was 
tendered, and a note, to that effect, was entered, by the deputy, 
in the poll-book, it was held that this proceeding substantially 
amounted to a recording of the vote, by the deputy, and that it 
became the duty of the returning officer, on inspection of the poll- 
book, to canvass that vote with the other votes cast for the same 
candidate, and that, for a breach of this duty, the returning officer 
was liable in an action. 5 

§ 459. The statutes of Illinois contained the following provisions : 
" When any person shall present himself, to give his vote, and 
either of the judges shall suspect that such person does not pos- 
sess the requisite qualifications of an. elector, or if his vote shall 
be challenged, by any elector who has previously given his vote 
at such election, the judges of the election shall tender to such 
person an oath, or affirmation, in the following form : 'I, A. B., do 
solemnly swear (or affirm as the case may be) that I am a resi- 
dent of the county of , in the state of Illinois ; that I have 

resided in this state for the period of six months immediately 
preceding this election ; that I have, to the best of my knowl- 
edge and belief, attained the age of twenty-one years ; and that I 

3 Goetschens v. Matthewson, 61 N. Y. 3 People v. Canaday, 73 N. C. 198. 

420. 4 13 & 14 Vict, c. 69, s. 88. 

3 Stat. N. C. Private, Feb. 3, 1875, s. 12. 5 McGowan v. Sedley, 8 Ir. C. L. 342. 

25 



386 

have not voted at this election.' And if the person so offering 
his vote shall take such oath, or affirmation, his vote shall be 
received, unless it shall be proved, by evidence satisfactory to a 
majority of the judges, that the said oath or affirmation is false." 1 
It was held, by the supreme court of the state, that, under this 
statute, the judges of election had no power to inquire whether a 
person, who took the prescribed oath, was an unnaturalized for- 
eigner, or a citizen, or an inhabitant ; that, if the person took the 
oath, it became the imperative duty of the judges of election to 
receive his vote, unless his oath was proved to be false ; that the 
judges did not subject themselves to the penalty, imposed for 
receiving illegal votes, by receiving the vote of an alien, who took 
the oath prescribed, unless the oath was proved to be false. 2 The 
questions to be decided by the judges of election when a vote is 
offered, are whether the person offering the vote is a qualified 
elector and whether his name is on the register and on the poll- 
list. Unless both these questions are answered in the affirmative 
the vote is to be rejected. 3 The power of the judges of election 
to inquire into the legality of a vote cannot be exercised after the 
ballot is actually deposited in the box. 4 

§ 460. Under a constitution conferring the elective franchise 
upon white male citizens only, 5 in the absence of statutory enact- 
ments authorizing the challenge of voters on account of color, or 
a determination of the question of color by the inspectors of 
election, it is not competent for the inspectors to receive the votes 
of persons challenged on account of color, without determining, 
in some way, by inspection, or otherwise, whether they come 
within the description of persons in this respect qualified to vote. 
They cannot do so without violating a duty resulting from the 
nature of their office and from the requirements of the constitu- 
tion. In the determination of this question they act judicially; 
and they are not liable, in damages, for errors of judgment, 
when their action is impartial, and not influenced by corrupt, 

a Rev. Stat. 111. 1833, p. 246, s. 12. scribed by state laws, to vote for 

2 Spragins v. Houghton, 3 111. 377. In representatives in congress. 

this case one of the judges expressed the 3 Webster v. Byrnes, 34 Cal. 373. 

opinion that, under the constitution of 4 Hartt v. Harvey, 32 Barb. 55. 

the United States, it was competent for 5 Const. Mich. Amend. 1839, art. 2, 

the states to permit Unnaturalized for- s. 1. 

eigners, having the qualifications pre- 



387 

or improper, motives. 1 A voter cannot be challenged for deser- 
tion from the army, or navy, of the United States, in violation 
of section twenty-one of chapter seventy-nine, volume thirteen, of 
the acts of congress, without the record of his conviction of the 
offence ; nor can he be interrogated, on oath, respecting such deser- 
tion. 2 Judges of election cannot lawfully reject votes of persons 
not challenged, without evidence of their illegality. 3 If persons 
vote, without challenge, their right to vote will be presumed. 4 

§ 461. A person who is challenged, by a legal voter, in pursuance 
of the statute, cannot vote, without taking the oath prescribed by 
law. 5 An affidavit, offered by an unregistered voter, in support 
of his right to vote, is sufficient, if duly certified by the officer 
before whom the oath was taken, although not signed by the affiant. 6 
The fact that the statute appoints a particular oath to be put to a 
party claiming as freeholder excludes the court, on appeal from 
the decision of the freeholders, from ordering him to reply to in- 
terrogatories framed to discover the fictitious nature of the quali- 
fication. 7 Although the refusal of an elector to take an oath pre- 
scribed by law will deprive him of the right to vote, the refusal, 
or neglect, of the officers of election to administer the oath will 
not deprive him of that right, unless the statute expressly provides 
that such shall be the consequence of their refusal, or neglect. 
Where more than seventy unassessed persons were permitted to 
vote at one precinct, without being sworn themselves, or producing 
others to vouch for them, as required by the statute of Penn- 
sylvania, and the list of taxables was missing from the ballot-box, 
or failed to show that any proof had been required of any unas- 
sessed voters, the entire poll was excluded. 8 If unassessed per- 
sons vote, in Pennsylvania, without being examined under oath, 
as prescribed by the law of that state, their votes will be rejected. 9 

Where the inspectors refused to administer to the voters the pre- 
liminary oaths required by the statute of New York, the votes were 
rejected. l ° By the ordinance of the state of Missouri, adopted June 
10, 1862, it was expressly provided that no person should vote 

Gordon v. Farrar, 2 Dougl. (Mich.) 5 Darragh v. Bird, 3 Oregon, 229. 

411. , 6 LeMoyne v. Farwell, Smith, 406. 

2 Goetschens v. Matthewson, 61 N. T. 7 Forbes v. Macpherson, Eev. M. 8769. 

420. 8 Myers v. Moffatt, 2 Bart. 564. 

3 Darragh v. Bird, 3 Oregon, 229. 9 Taylor v. Beading, id. 661. 

4 Finley v. Bisbee, 1 Ells. 74. ]0 Van Wyck v, Greene, id. 631, 



388 

who should not have first taken the prescribed oath. And it was 
decided that the votes of those who refused or neglected to take 
the oath could not be counted. 1 Perjury cannot be predicated 
upon a false statement, made at the polls, under an oath admin- 
istered by a judge of election who had not himself been sworn 
according to law. The rule of law, founded upon public policy, 
which makes the acts of officers de facto valid for many purposes, 
does not apply when an oath, administered by such an officer, is 
made the foundation of a prosecution for perjury. 2 Where a 
statute imposes a penalty, upon any judge, or inspector, of elec- 
tions, " who shall knowingly and wilfully, or corruptly, refuse, or 
neglect, to receive the vote of any voter," the officers, although 
required by the general election laws, to receive the ballot of a 
challenged voter, upon his taking the prescribed oath, will not be 
punishable for the rejection of an illegal vote, even though the 
voter may have taken the prescribed oath. 3 

§ 462. An elector cannot vote by installments. If, at a viva 
voce election, he first vote for state officers, he cannot afterwards 
vote for representative in congress. 4 The elector cannot send his 
ballot to the polls, but must deliver it in person. 5 Where an 
elector is polled, at a viva voce election, and his vote is recorded 
for one candidate, he is not at liberty, afterwards, to change it, 
and have his vote transferred to another candidate. 6 It is not 
lawful for judges of election to refuse the votes of electors, because 
they have " paired " with others, and agreed not to vote. 7 

§ 463. A statute declaring that, " after the opening of the polls, 
no adjournment shall be had, nor shall any recess be taken, until 
all the votes east at such an election shall have been counted, 
and the result publicly announced," 8 is directory, and not manda- 
tory, although prohibitory in form. A recess of an hour, taken 
by the officers, at noon, for dinner, without fraudulent or wrongful 
purpose, or results, will not warrant the rejection of the poll of 
the precinct. 9 The selectmen have no authority to adjourn a 
town meeting, in Massachusetts, without a vote of the meeting ; 
and, if such an adjournment take place, while an election is in 

1 Lindsay v. Scott, 1 Bart. 569. 5 Richards' case, 0. & H. 99. 

2 Biggerstaff v. Commonwealth, 11 6 Draper v. Johnston, id. 702. 
Bush. (Ky.) 169. 7 Piatt v. People, 29 111. 54. 

3 State v. Robb, 17 Ind. 536. ''Gross Stat. 111. p. 255, s. 72. 

4 Draper V, Johnson, C. & H. 702. 9 Supervisors v. People, 65 111. 360. 



389 

progress, and before it is completed, it cannot be legally completed 
at the adjourned meeting. 1 The constitution of Massachusetts 
does not admit of an adjournment of the second meeting for the 
choice of representatives, to a day subsequent to the fourth 
Monday of November ; nor can meetings for the choice of governor, 
lieutenant-governor, and senators, be adjourned to a subsequent 
day. 2 The refusal of the selectmen to put a motion to adjourn 
will not invalidate an election. 3 Under a statute providing that 
" no town meeting shall be held longer than two days," and that 
the meeting shall " only be open between sunrise and sunset, and 
shall be held at such place, in each town, as the freeholders and 
inhabitants thereof, at their town meeting, shall, from time to time, 
appoint," 4 the meeting may be lawfully held two days, and may be 
opened at any time between sunrise and sunset ; and the electors 
may, in their discretion, adjourn the meeting on the first day, to 
be held at a different place on the second day. They are the exclu- 
sive judges of the necessity and propriety of such adjournment. 
Whatever is done on the first day, after such adjournment, is irreg- 
ular and void. 5 

§ 464. In Virginia a sheriff holding an election had a discretion- 
ary power to close the polls, at any time of the day, after three 
proclamations made, no voters appearing. And he had the same 
discretionary power to adjourn in consequence of rain. 6 Under 
the colonial charter of 1736, and the state laws, the mayor of 
Norfolk had the same power which the county sheriffs had to ad- 
journ the polls, if the electors present were too numerous to vote 
in one day, or if many electors were prevented from attendance by 
rain, or high water. 7 

1 Wilmarth's case, C. S. & J. 326. to be impracticable to poll all tbe votes, 

2 Opinion of the Justices, id. 407. the officer's return of the election was, 

3 Wilmarth's case, id. 339. prima facie, proof of the legality of the 

4 Rev. Laws, N. Y. 1813, p. 127, s. 4. continuance of the election to the next 

5 Goodel v. Baker, 8 Cow. 286. day ; but, inasmuch as the presence of 

6 Trigg v. Preston, C. & H. 78. the enemy's cruisers had interfered with 
7 Loyall v. Newton, id. 520. In the the taking of the testimony, they recom- 

case of Bassett v. Bayley, id. 254, the mended that further time be granted for 

committee of elections held that if, un- taking testimony in the case, in which 

der the law of Virginia, requiring the recommendation the house concurred, 

polls to be closed on the first day, unless In their second report the committee 

electors were prevented from attend- held that the question whether there 

ing by rain, or high water, it proved was a valid ground for the continuance 



390 

§ 465. The statute of Yirginia contained this provision : "If 
the electors who appear be so numerous that they cannot all be 
polled before sunsetting, or if, by rain, or rise of water-courses, 
many of the electors may have been hindered from attending, the 
sheriff, under-sheriff, or other officer, conducting the election at 
the court house, and the superintendents of any separate poll, if 
such cause shall exist, at any separate poll, for the adjournment 
thereof, may and shall, by the request of any one, or more, of the 
candidates, or their agents, adjourn the proceedings in the poll 
until the next day, and from day to day, for three days (Sundays 
excluded), giving public notice thereof at the door of the court 
house." Under this statute the committee held that, even if it 
should appear that the superintendents were mistaken in their 
judgment, their adjournment and subsequent proceedings would 
not be declared illegal and void, in the absence of proof or charge 
of fraud. 1 Under the state laws of 1834 and 1842, the superin- 
tendents of election, in Yirginia, had power to adjourn the polls, 
instead of the sheriff. 2 Where the law requires the polls to 
be opened between the hours of six and ten o'clock, in the fore- 
noon, and to be kept open until six o'clock in the afternoon, the 
closing of the polls for an hour at noon, in the absence of proof 
that any elector was thereby deprived of an opportunity to vote, 
is not a good ground for the rejection of the return of the pre- 
cinct. 3 

§ 466. In England a candidate may, during the two hours des- 
ignated for the election, but not afterwards, withdraw from his 
candidature, by giving a notice, to that effect, signed by himself, to 
.the returning officer; and when a candidate is nominated, during 
his absence from the United Kingdom, his proposer may with- 
draw his nomination, by a written notice, signed by him, and 

of the election was one of fact, and not that, after deducting those votes, the 

for the sheriff's discretion, and that the sitting member had a majority of five ; 

proof showed that no valid ground for and they submitted a resolution affirming 

such continuance existed ; and they sub- the right of the sitting member to his 

mitted a resolution declaring the ad- seat, in which the house subsequently 

journment illegal, and rejecting the concurred. 

votes cast after such adjournment. The ' G-oggin v. Gilmer, 1 Bart. 70. The 

report was recommitted, and, at the next house concurred, without dissent. 

session, the committee, in their third 2 lb. 

report, held that the votes given after 3 Delano v. Morgan, 2 Bart. 168. The 

the adjournment were illegal, but found house concurred. 



391 

delivered to the returning officer, with a written declaration of 
the absence of the candidate. 1 In the United States a candidate 
may withdraw at any time ; but his withdrawal will affect neither 
the right of the electors to vote for him, nor his right to accept 
the office, if elected. If a candidate for parliament receive a 
majority of- the votes, upon the show of hands and, a poll having 
been demanded for his opponent, withdraw from the contest, 
before the poll is taken, and his opponent be thereupon declared 
elected, the election will be void. 2 

§ 467. When it clearly appears that the fairness, purity, or 
freedom of an election, at any poll, has been materially interfered 
with, by acts of violence, or intimidation, the election is to be 
set aside. 3 But a casual affray will not affect the validity of an 
election. 4 "Because elections ought to be free, the king com- 
mandeth, upon great forfeiture, that no man, by force of arms, nor 
by malice, or menacing, shall disturb any to make free election." 5 
Whenever there has been an interruption of the proceedings / by 
riot and tumult, notwithstanding the returning officer has been 
able to continue and finish the poll, and to comply with the exigency 
of the writ, by the return of members, the election has been held 
totally void. 6 If the proceedings, in English elections, either at the 
nomination, or at the poll, be interrupted or obstructed, by riot, or 
violence, the returning officer must adjourn the proceedings till the 
following day, or, if that be Sunday, Good Friday, or Christmas 
day, to the next day thereafter. 7 An allegation that large numbers 
of electors were deterred from voting by violence, or intimidation, is 
not to be established by hearsay and general reputation alone. Such 
evidence must be corroborated by direct and positive proof of 
some fact tending to establish the allegation, as, for example, an 
unexplained failure to vote, on the part of those alleged to have 
been deterred from voting by intimidation or violence. 8 Unlawful 

^S&SGVict. c. 33, s. 1. 53; Coventry case, 20 id. 60, 22 id. 

2 Wexford Election, 3 Ir. R. C. L. 612. 819 ; Westminster case, 24 id. 37 ; 

3 Bisbee v. Finley, 2 Ells. 172; Smalls Pontefract case, 32 id. 68; Westmin- 

«. Tillman, id. 430 ; Lee v. Richardson, ster case, Chamb. Elect. 607 ; Notting- 

id. 520 ; Sheafe v. Tillman, 2 Bart. 907. ham case, 1 Peck. 77 ; Hey. 546 ; Rog. 

4 Whyte v. Harris, 1 Bart. 257. Elect. 243. 

5 3 Edw. 1, c. 5. 7 2 W. 4, c. 45, s. 70 ; 5 & 6 W. 4, c. 
6 Pontefract case, 1 Jour. 797, South- 36, s. 8. 

wark case, 14 id. 24; Coventry case, 8 Norris v. Handley, Smith, 60. 

15 id. 278 ; Westminster case, 20 id. 



392 

interference with United States supervisors of election, preventing 
them from discharging their official duties, will invalidate the 
election. 1 

§ 468. Where there was no reasonable ground to fear personal 
violence, or injury, in consequence of appearing to make and sup- 
port objections to registration, but it was against the public opinion 
of the county that persons, who had not committed disloyal acts, 
should be disfranchised, merely on the score of opinions and 
sympathies, and many persons did, in fact, refrain from making 
objections for that reason, it was not such an unlawful interference 
with, or obstruction of, the law as to invalidate the election. 2 
Threats to seek redress against refusal of registration, by a resort 
to legal tribunals, will not invalidate the registration. 3 A specifi- 
cation, in the notice of contest, setting forth that, in all the wards, 
bands of men conspired to exclude and obstruct legal voters, who 
intended to vote for the contestant, and assembled near the voting 
places, " armed with deadly weapons, and by threats intimidated, 
and by violence obstructed and drove away from the polls thou- 
sands of legal voters," and deterred many from approaching the 
polls, was held insufficient, if proved, to avoid the election, because 
it did not show either that the election was arrested and broken 
up in every ward, or that so many individuals were excluded, by 
violence and intimidation, as would, if allowed to vote, have given 
the contestant the majority. 4 

§ 469. The majority of the committee found that in certain 
parishes, in which less than one-fourth of the legal voters of the 

1 Buchanan v. Manning, 2 Ells. 287. voted, had there been a free and peace- 

2 Switzler v. Anderson, 2 Bart. 274. able election, and that they would have 
The house rejected the report. voted against that disloyal party, which, 

3 Switzter v. Anderson, id. 274. by intimidation and violence, deprived 

4 Harrison v. Davis, 1 Bart. 341. It them of their right, and in favor of the 
has been asserted that the only cases in party of union and peace. The minority 
which elections have been set aside on were of the opinion that this kind of 
account of violence were those in which logic and law, when indulged in by a 
there was riot at the polls, or such committee charged with the delicate and 
tumult as interfered with the election, important duty of deciding a great ques- 
and prevented an ascertainment of the tion of the right to representation, could 
result. Preston v. Harris, 1 Bart. 346 not be fitly characterized without a vio- 
It was held, by the majority of the com- lation of the rules of parliamentary 
mittee, to be fair to presume that nearly courtesy. The house adopted the report 
all electors prevented from voting by of the majority of the committee. Hunt 
intimidation and violence would have v. Sheldon, 2 Bart. 530. 



393 

district resided, and less than one-fifth of the registered vote of the 
district was cast, the election was peaceably and legally held ; that 
in all the other parishes of the district violence and intimidation 
prevailed, and that in the peaceable parishes the contestant 
received a majority of 356 votes. They counted the votes of the 
peaceable parishes only, and awarded the seat to the contestant, 
neither claimant having been admitted on his credentials. The 
house thereupon admitted the contestant, by a vote of 78 to 73 m 
But, while the speaker was waiting to administer the oath of 
office to the contestant, who was not at the moment within the 
bar of the house, a reconsideration was moved, and, after pro- 
longed debate, it was carried, by a vote of 83 to 79 ; and the 
house then declared, by a vote of 100 to 69, that no valid election 
had been held. 1 

§ 470. The majority of the committee of elections found that in 
the first eight wards of the city of Baltimore, and in the twelfth 
district of the county of Baltimore, in which were cast five-sixths 
of the entire vote of the district, violence, intimidation, and gen- 
eral lawlessness prevailed, in some precincts, to a greater extent, 
than in others, but in all to a most culpable extent ; that the 
reception of illegal votes and the rejection of legal votes, the acts 
of violence and assault committed on peaceable citizens, and the 
intimidation of voters, destroyed all confidence in the election, as 
the expression of the free voice of the district; and they held 
that the precedents of other elective bodies, and the principles of 
the constitution, in the absence of precedents of the house itself, 
required the election to be set aside, and the seat vacated. 2 

§ 471. Although the election itself was peaceable, yet, if it was 
preceded by such violence as resulted in a state of intimidation exist- 
ing at the time of the election, the returns are to be rejected. 3 The 
majority of the committee rejected the votes of more than one- 
half of the district, on account of intimidation and violence, and 
awarded the seat to a claimant who received a small majority of 

Cypher v. St. Martin, 2 Bart. 699. that there was no ground for setting 

2 Whyte v. Harris, 1 id. 257. aside the return. The house laid the 

The minority found that the election whole subject on the table, by a vote of 

was uninterrupted, and generally very 106 to 97. 

quiet; that there was no obstruction at 3 Hunt v. Shelden, 2 Bart. 703. The 

the polls, beyond the ordinary pushing, house sustained the committee, by a vote 

crowding, and confusion, incident to of 114 to 51. 

elections in the city ; and they held 



394 

the votes counted, but less than one-third of those cast for the two 
candidates in the entire district. 1 One of the grounds, upon which 
the majority of the committee based their decision, in favor of the 
contestant, was that about five thousand persons who offered, or 
intended and attempted, to vote for him, were kept, or driven, 
from the polls by violence and intimidation. 2 In a district com- 
posed of eleven parishes the committee rejected the vote of four, 
on account of intimidation and violence, and awarded the seat 
to the claimant, who received a majority of two hundred and forty- 
five votes in the peaceable parishes, while his opponent received 
a majority of seven thousand four hundred and ninety-seven in 
the entire district. 3 In a district composed of nine counties the 
committee rejected the vote of six, on account of intimidation and 
violence, and awarded the seat to the claimant, who had a majority 
of one thousand and twenty -two, in the counties accepted, while 
his competitor had a majority of four thousand two hundred and 
ninety-one, in the entire district. 4 The committee rejected the 
votes of a large portion of the district, on the ground that the 
election therein was controlled by violence and fraud, and awarded 
the seat to a candidate, who received a majority of thirteen hun- 
dred and eight votes, in the peaceable parishes, while his competitor 
received a majority of five thousand nine hundred and eighty- 
eight votes in the entire district. 5 

^unt v. Sheldon, 2 Bart. 703. The is peculiarly exposed to violence and 

majority of the committee, in the subse- intimidation by the former master class, 

,,, ,, n o -d i. prone by habit and inclination to domi- 

quent case of Morey v. McCranie, 2 Bart. r j.v • * i a i.u 

H • J ' neer over their former slaves ; and there- 

719, referring to this decision, stated the f ore we accept the decision of the house 

law as follows : in Sypher's case, not as a reversal, but 

,' , , , , <. . ,, as a limitation, of the rule adopted in 

-The house has heretofore m the case Shelden , s case and iuter p r et the action 

of Hunt*. Shelden, adopted the rule that, of ^ ho in s her £ case to mean 

where it appears that certain precincts ^ ^ ^ shoul( f not be so far ex _ 

and parishes of a district have been car- tended ag tQ x tQ guch ft cage when 

ried by violence, or intimidation, the re- lesg than one . f ^ h of the le al electors 

turns therefrom shall be rejected and the of ^ digtrict resided and ^.fifth of 

result derived from the returns from the ^ r istered vote was cast witMn the 

peaceable districts and parishes. In the a 5 ble parishe8 a nd precincts, and 

subsequent case of Sypher the house th e claimant received but a small majority 

refused to apply this rule to that case, ^ that vote " 
and your committee, submitting to the 

judgment of the house, considers it a 2 Wallace v. Simpson, 2 Bart. 731. 

duty to reconcile these two cases if pos- s Darrall v. Bailey, id. 754. 

sible We cannot advise the house to 4 Wallace ^ s im p Son id . 731. The 
abandon the principle adopted in Hunt 

i). Shelden, which seems of inestimable house concurred. 

value in preventing lawless attempts 5 Newsham v. Kyan, id. 724. The 

upon the ballot-box, in the late rebellious house concurred by a vote of 79 to 71. 
states, where a new voting population 



395 

§ 472. Undue influence includes withdrawal of custom, eviction 
by landlords, spiritual intimidation, threats by fellow-workmen, dis- 
missal from employment, abduction of voter. * Under a Dominion 
statute, declaring that " if it is found, by the report of any court, 
judge, or other tribunal, for the trial of election petitions, that 
any corrupt practice has been committed, rjy any candidate, at 
an election, or by his agent, whether with, or without, the actual 
knowledge and consent of such candidate, the election of such 
candidate, if he has been elected, shall be void;" 2 that "the 
offences of bribery, treating, or undue influence, * shall be 
corrupt practices, within the meaning of this act;" 3 and that 
" every person, who directly, or indirectly, by himself, or by 
any other person on his behalf, * in any manner, practices 
intimidation upon, or against, any person, in order to induce, 
or compel, such person to vote, or refrain from voting, or on 
account of such person having voted, or refrained from voting, 
at any election, * shall be deemed to have committed the 
offence of undue influence," 4 it was held that threats uttered by 
parish priests, in and out of the pulpit, constituted undue influence, 
and rendered the election void. 5 The fear of social ostracism, 
or religious persecution, if brought to bear upon the great body 
of voters so generally as to affect the result, will invalidate the 
election. 6 A minority can only elect where the majority, enjoying 
full opportunity to vote as they choose, with exemption from the 
restraint of undue influence, refrain from voting. 7 An election 
of magistrates is not avoided by the apprehension of one and 
illegal seizure of another of the electors, at the instance of the 
successful party, where, in any case, the result would have been 
in favor of the same candidate. 8 

§ 473. An election, held under military authority, in only four 
of the eleven counties composing the district, was adjudged illegal 
and invalid. 9 A claimant can, in no just sense, be deemed the 
choice of the loyal voters of a district, in which less than half of 
them had an opportunity to express their choice. Electors may 

1 Leigh & L. M. 28-32. 6 Kichardson v. Kainey, 1 Ells. 224. 

2 Stat. Can. 37 Vict. c. 9, s. 101. - 7 Ib. 

3 Id. s. 97. H Smollett v. Buntein, Cr. & St. 26. 

4 Id. s. 95. 9 Wing v. McCloud, 1 Bart. 455. 
5 Brassards. Langevin, 1 S. C. Canada, 

145. 



396 

voluntarily absent themselves from the polls, and be presumed to 
have thereby acquiesced in what was done by those who were 
present. But no such presumption exists in the case of those 
who were under duress, and, but for such duress, might have 
caused a different choice to be made. 1 In no proper sense can 
an election, by the *voters of a single county, be regarded as the 
choice of other counties, which have been prevented, by the 
rebellion, from expressing any wish, at the ballot-box. 3 If an 
election be invalid, in eleven out of twelve counties of a district, 
it will be set aside, and the case remanded to the people for a 
new election. 3 It is not possible for two-ninths of a district, 
which is occupied mainly by hostile armies, to hold a valid elec- 
tion. 4 It was held, by a majority of the committee, that it was 
one of the essentials of a valid election that all the registered and 
qualified electors should have an opportunity to vote freely and 
without restraint, fear, or the influence of fraud; and that the 
returns of those parishes, where the electors had not such oppor- 
tunity, should be rejected, and only the others canvassed. 5 

Where the election was suppressed, in the greater part of the 
district, by the United States military governor, it was held to be 
invalid. 6 Where the district was under martial law, and the elec- 
tion was controlled by military officers ; but it appeared that their 
orders were designed to carry out the laws of the state, and in no 
way to interfere with the freedom of the elective franchise, it was 
held that, whether their orders were proper or not, the election 
was not invalid. 7 The presence and interference of federal sol- 
diers, under the command of a brother of the sitting member, who 
received a majority of only ten votes, were held by the committee 
to be a sufficient ground for vacating the seat. But the decision 
of the committee was not sustained by the house. 8 

§ 474. In order to prevent the holding of an election, in the ninth 
congressional district of Tennessee, on the 29th day of December, 
1862, the day fixed by the writs and proclamation of the military 

1 Foster -y.Piggott, 1 Bart. 463; Segar's 7 McHenry v. Yeaman, 1 Bart. 550. 
case, id. 577. 8 Trigg v. Preston, C. & H. 78. 

2 Chandler's case, id. 520 A bill providing for the removal of 
3 BIakey v. Golladay, 2 id. 417. federal troops from places of holding 
4 McKenzie's case, 1 id. 460. elections, passed the house March 14, 

5 Hunt v. Shelden, 2 id. 703. 1800, but was rejected by the senate, 

6 Field's case, 1 id. 580. April 4, 1800. 



397 

governor, the rebel general Forrest made a raid into the district, 
and, on the day of the election, occupied nearly the whole of it. 
The union forces marched into the district to meet him, and gen- 
eral Hurlbut issued a military order postponing the election. 
Every part of the district was either in the occupation of contend- 
ing armies, or in such a state of commotion that freedom of election 
was impossible. In a small portion of the district, where the order 
of postponement was not received, an attempt was made to hold 
an election. A battle was fought in sight of the polls. The 
committee decided that a legal election had not been held. 1 An 
election, for the choice of a representative in congress, was held 
in the seventh congressional district of Virginia, situated opposite 
to the District of Columbia, on the fourth Thursday of May, 1863. 
This district had been the theatre of war more than any other, 
and had been ravaged and devastated by contending armies. On 
the day of the election, more than half of it was in the armed 
occupation of the enemy, and a large part was disputed ground, 
in possession sometimes of one and sometimes of the other army. 
The committee concluded that, although the case came very near 
the dividing line between a valid and an invalid election, yet there 
had not been a free choice by the legal voters of the whole district, 
and the election could not be recognized as valid. 2 

Where the vote actually polled is so small a minority of the 
whole that it cannot be determined that the person selected by that 
minority was the choice of the whole district, and the majority 
were absent from the polls, not voluntarily, but on compulsion by 
the military force of the enemy, the election will be treated as 
illegal and void. 3 

§ 475. The regular election of representatives of the state of 
Louisiana, in the thirty-seventh congress, was not held on the first 
'Monday of November, 1861, as the statute required, because, at 
that time, the state was overrun by rebel armies, and the governor, 
who had become a rebel, failed to cause the election of represent- 
atives to be held according to law. On the 14th of November, 
1862, an election was held in two of the districts, by order of the 
military governor, who was a subordinate of the commander of 
the Department of the Gulf. It was decided by the committee 

1 Hawkins' case, 1 Bart. 466. 3 Segar's case, 1 Bart. 577. 

2 McKenzie v. Kitchen, id. 468. 



398 

that, inasmuch as the proceedings were, in other respects, regular, 
the designation of the day, by the military governor, did not in- 
validate the election. 1 

§ 476. On the issuing of any new writ for an election in Great 
Britain the general officer, commanding in each district, is required 
to give orders that, on the day appointed for the election, no sol- 
dier, quartered within two miles of the place of polling, or nomi- 
nation (except only the guards attending the sovereign, or royal 
family, or the soldiers stationed in the bank of England), shall go 
out of his barracks, or quarters, except to mount, or relieve guard, 
or, if a voter, to vote at the election ; and that any soldier going 
out for any, or either, of these objects is to return, with all con- 
venient speed, after accomplishing them. 3 The presence and influ- 
ence of United States troops, in South Carolina, in October, 1876, 
justified the setting aside of the election of November, 1876. 3 

§ 477. An election of representative in congress, held in only 
four of the eleven counties constituting the district, is illegal. 4 In 
consequence of the innocent failure of the sheriff to notify two of 
the towns of the district, of the time and places of the election, no 
election was held, in those towns. In the other towns of the dis- 
trict, the sitting member received 1,804 and the contestant 1,783 
votes. The only evidence, tending to show that there were enough 
qualified voters, in the two towns in question, to change the result, 
was ex parte proof. The committee reported that, inasmuch as it 
did not appear, to their satisfaction, that there was a sufficient 
number of freemen, in those towns, to change the result, only 
fifteen having voted at the previous election (at which there was 
no choice), they were of the opinion that the sitting member was 
entitled to his seat. After a recommitment of the case, the com- 
mittee reported that it appeared, by depositions of the town clerks, 
that there were thirty-six qualified voters in the two towns ; and 
the house amended the report, by adding a declaration that, 
inasmuch as there appeared to have been a sufficient number of 
qualified voters, in the two towns, to change the result, the sitting 
member was not elected, and was not entitled to the seat. But 
the amended report was finally rejected by the house and the sitting 
member retained the seat. 5 

1 Hahn's case, 1 Bart. 438. 4 Wing v. Cloud, 1 Bart. 455. 

2 10 & 11 Vict. c. 21, ss. 2, 3, 4. 5 Lyon v. Smith, C. & H. 101. 

3 Bichardson v. Bainey, 1 Ells. 224. . 



399 

§ 478. In England a candidate at a municipal election, nnder 
the ballot act, 1 has a right, as such candidate, to be present in 
the polling station, during the election, although he does not act 
himself, or assist the agent in the performance of the agent's 
duties, and the presiding officer has no authority to exclude him 
therefrom, unless for misconduct. 2 A refusal by the judges of 
election to permit certain friends of the contestant to be present, 
while the votes were received, as required by law, is a good ground 
for the rejection of the return of the precinct. 3 

1 35 & 36 Vict. c. 33. 3 Delano v. Morgan, 2 Bart. 168. 

2 Clementson v. Mason, 10 L. K. C. P. 
209. 



CHAPTEE XXI. 

PROCEEDINGS— Continued. 







Secs. 




Secs. 


1. Bribery 


. 


. 479-492 


3. Wagers 


. 494,495 


2. Personation ; 


repeating 


. 493 


4. Crime and misconduct 


. 496 



§ 479. When the majority, or plurality, of the successful can- 
didate, is secured by bribery, perpetrated either by the candidate 
himself, or by his agents, or by other persons, without his consent, 
or knowledge, the election will be set aside. In case of bribery, 
on the part of the successful candidate, or his agents, the election 
may be set aside, even though it shall not appear that his majority, 
or plurality, was secured by such briber}^. Bribery perpetrated 
by other persons, without the consent, or knowledge, of the suc- 
cessful candidate, will not ordinarily justify the rejection of the 
poll, when it shall appear that the result was not thereby changed. 
Bribery, at elections, is a crime at common law. 1 In England, 
bribery at elections includes the payment, or offer, or promise, of 
money, the employment of voters, the payment of voters for loss 
of time, the corrupt payment of rates, the payment of barristers' 
court money, an agreement to procure a return, the payment of 
travelling expenses, charitable gifts, payment to induce persona- 
tion, and wagers. 2 "No elector, who, within six months before, 
or during, any election, for any county, or borough, shall have 
been retained, hired, or employed, for all, or any, of the purposes 
of the election, for reward, by, or on behalf of, any candidate, at 
such election, as agent, canvasser, clerk, messenger, or in other 
like employment, shall be entitled to vote, at such election ; if he 
shall so vote, he shall be guilty of a misdemeanor." 3 Where a 
by-law, granting a donation to a railway company, has been carried 
by the electors, the municipal council will not be compelled, by 
mandamus, to consummate the by-law, if it appear that bribery 
was practised, by the person, or corporation, to be benefited by 
the by-law, in order to secure its passage. 4 Bribery by a candidate, 

1 Kex v. Pitt, 1 W. Bl. 383. 3 30 & 31 Vict, c. 102, s. 11. 

2 Leigh & L. M. 1-19. 4 Langdon's case, 45 U. C. Q. B. 47. 

400 



401 

at a parliamentary election, although it renders his election void, 
does not cause votes given for him, with knowledge of such bribery, 
to be thrown away. 1 

§ 480. "Any person, either directly or indirectly, corruptly pay- 
ing any rate, on behalf of any rate-payer, for the purpose of 
enabling him to be registered, as a voter, thereby to iDfluence his 
vote at any future election, and any candidate, or other person 
either directly, or indirectly, paying any rate, on behalf of any 
voter, for the purpose of inducing him to vote, or refrain from 
voting, shall be guilty of bribery, and punishable accordingly ; 
and any person, on whose behalf, and with whose privity, any 
such payment, as in this section is mentioned, is made, shall also 
be guilty of bribery, and punishable accordingly." 2 " It shall not 
be lawful for any candidate, or any one on his behalf, at any elec- 
tion for any borough, except the several boroughs of East Redford, 
Shoreham, Cricklade, Much Wenlock, and Aylesbury, to pay any 
money, on account of the conveyance of any voter to the poll, 
either to the voter himself, or to any other person. And, if any 
such candidate, or any person on his behalf, shall pay any money, 
on account of the conveyance of any voter to the poll, such pay- 
ment shall be deemed to be an illegal payment, within the mean- 
ing of the Corrupt Practices Prevention Act, 1854." 3 In England 
candidates usually appoint agents for three distinct purposes, 
(1) to defray the expenses of the election, (2) to detect persona- 
tion, and (3) to be present at the canvass of the votes. The 
appointment of agents, for the last two of these purposes, is not 
compulsory. But it is provided, in the statute, that no payments, 
except in respect of the personal expenses of a candidate, and no 
advance, loan, or deposit, shall be made, by, or on behalf of, 
any candidate, at an election, before, or during, or after, such 
election, otherwise than through an agent, or agents, whose names 
and addresses have been declared, in writing, to the returning 
officer, on, or before, the day of nomination, and any person who 
makes any such payment, advance, loan, or deposit, otherwise 
than through such agents, shall be guilty of a misdemeanor. 4 

§ 481. If a candidate for the house of commons be found, by 

1 Drinkwater v. Deakin, 43 L. J. C. P. 3 30 & 31 Vict. c. 102, s. 36. 
626. 4 26 Vict. c. 29, s. 2. 

2 30 & 31 Vict. c. 102, s. 49. 

26 



402 

the election judge, to have been guilty of personal bribery, his 
election will be void, and he will be incapable of being elected to, 
or sitting in, the house, for a period of seven years ; and he will 
also be incapable, during that period, of being registered as a 
voter, or voting, at any election in the United Kingdom, and of 
holding any office, under 5 & 6 W. 4, c. 76, or 3 & 4 Yict. c. 
108, or any municipal office ; also of holding any judicial office, 
and of being appointed, or acting, as justice of the peace. 1 Brib- 
ery by the agent of a member, although without the member's 
knowledge, avoids his election, and renders him incapable of 
being chosen, at the election which takes place in consequence of 
such avoidance. 2 Where the funds of a political association were 
chiefly supplied to the secretary, by the respondent, and were 
mainly spent in treating, at meetings to promote the respondent's 
election, it was held that the secretary was his agent. 3 An addi- 
tional means for the detection of bribery has been found in the 
personal examination of sitting members and candidates, under 
the statute. 4 

§ 482. Where several individuals, with a view to induce a town 
to elect six representatives, being the whole number to which it was 
entitled, of a particular party, gave a bond, for the use of the inhab- 
itants, conditioned that the whole expense of such a representa- 
tion should not exceed the pay of two members, the election was 
declared void, although the members elected had no agency in 
procuring the bond. 5 Where, in pursuance of an agreement be- 
tween three persons, a test vote was had, to determine which of 
three should be a candidate for parliament, with the support 
of the other two, it was held that bribery, at such test vote, 
was within the bribery act, 6 and that the person so nominated 
was not entitled to retain his seat. 1 A declaration for bribing a 
voter, in the election for town councillors, by corruptly prom- 
ising to give him employment, at a specified compensation, as a 
reward for voting for particular candidates, is good in England ; 
for an employment is a reward in the sense of the statute. 8 

'May Pari. Pr. 675 ; 15 & 16 Vict. c. 4 May Pari. Pr. 675 ; 14 & 15 Vict. c. 

57, s. 43. 99. 

2 May Pari. Pr. 675; Bar. & Anst. 5 Parsons' case, C. S. & J. 97. 

564. 6 17 & 18 Vict. c. 102, s. 2, sub-s. 3. 

, 3 Truscott v, Sevan, 44 L. T. N. S. 7 Brett tf. Kobinson, 39 L. J. C. P. 265. 

192. 8 5 & 6 W. 4, c. 76, ss. 54, 55, 56. 



403 

Whether the employment was, in the particular case, given by way 
of corrupt bargain, is a question for the jury ; but when a corrupt 
agreement is sufficiently alleged, in the declaration, the court must 
assume the allegation to be true, in passing upon the sufficiency 
of the pleading. 1 

§ 483. Yotes cast for a particular candidate, in consideration 
of the promise, bestowal, or continuance, of employment, or in 
consideration of an increase, or continuance, of compensation, 
or wages, are illegal, and will be rejected. If it be shown that an 
elector, for a consideration, promised, directly, or indirectly, to 
vote for a particular candidate, the presumption will be that he 
cast his ballot, in accordance with such promise. If employment 
be given to a voter, with the object of inducing him to vote for a 
particular candidate, and he accept, or retain, such employment, 
with the knowledge that it is given for that object, the presumption 
will be that he voted for the candidate. 2 Under a statute, appli- 
cable to parliamentary and municipal elections, declaring that 
" every person, who shall directly, or indirectly, by himself, or by 
any other person, on his behalf, give, lend, or agree to give, or 
lend, or shall offer, promise, or promise to procure, or to endeavor 
to procure, any money, or valuable consideration, to, or for, any 
voter, or to, or for, any other person, in order to induce any voter 
to vote, or refrain from voting," 3 shall be deemed guilty of bribery. 
A promise, made to a voter, while soliciting his vote, that he shall 
be remunerated for loss of time, is bribery, inasmuch as it amounts 
to an offer, or promise, of a valuable consideration for a vote, made 
to induce the voter to vote. 4 Payment to voters, as travelling 
expenses, of sums of money greater than those actually expended 
in travelling, is bribery. 5 Where an agent of the respondent gave 
a holiday to the respondent's workpeople, on the polling day, 
and they were paid their wages as usual, many of them being 
voters who were supplied with colors, some being sent to the poll 
by the agent in carriages, and it appeared that, at previous elec- 
tions, when the respondent was not a candidate, a holiday had 

1 Harding v. Stokes, 1 M. & W. 354. 3 17 & 18 Vict. c. 102, s. 2, sub-s. 1. 

2 Abbott v. Frost, Smith, 594. See 4 Simpson <B. Yeend, 10 B. & S. 752. 
also Malcom v. Parry, 9 C. P. 610 ; King 5 Tomline v. Tyler, 44 L. T. N. S. 187. 
v. Isherwood, 2 Kenyon, 202 ; Felton v. 

Easthorpe, Kogers El. 221. 



404 

been given, but wages withheld, it was decided that the respond- 
ent's return was void for bribery by his agents. 1 

It is bribery to make a corrupt offer of a valueless thing, in order 
to induce a voter to vote. 2 The wholesale employment of voters, to 
render valueless services, avoids an election. 3 A voter who agreed, 
or contracted, for any pecuniary or other reward, to give, or to 
forbear to give, his vote, at an election, was liable to the penalties 
of 2 Geo. 2, c. 24, s. 7, although he never intended to perform the 
corrupt agreement. 4 It is a criminal offence, in England, to furnish 
refreshments to voters, at parliamentary, or municipal, elections. 5 
The words of an act of parliament were these, " that no person, 
or persons, hereafter to be elected, * shall, or do, hereafter, by 
himself, or themselves, or by any other ways, or means, on his, or 
their, behalf, or at his, or their, charge, before his, or their, elec- 
tion, * directly, or indirectly, give, present, or allow, to any person, 
or persons, having voice, or vote, in such election, any money 
meat, entertainment, or provision, * * in order to be elected, 
or for being elected. * " 6 It was held, by the court of exchequer, 
that the acts, mentioned in the statute, must be performed by the 
candidate, or by some person acting for him, and on his behalf, 
in order to secure his election ; and where supporters of a candidate 
gave orders to the keeper of a public house, opened by the com- 
mittee of the candidate, to supply others with refreshments, which 
were supplied on the credit of those who gave the orders, the case 
was not within the prohibition of the act. If refreshments be 
supplied to voters, with a view to influence the election, it will be 
bribery at common law. 7 A candidate is disqualified, under the 
statute, 8 by acts amounting to corrupt treating, although such 
acts were performed before the dissolution of parliament which 
occasioned the vacancy for which he was a candidate. 9 

§ 484. It was provided, by act of parliament, as follows : " Every 
person who shall, directly, or indirectly, by himself, or by any 
other person, give, or agree to give, or promise, money * * to any 

1 Truscott v. Bevan, 44 L. T. N. S. 64. 6 7 & 8 W. 3, c. 4, s. 1. 

2 Spencer v. Harrison, id. 283. 7 Hughes fl. Marshall, 2 Cromp. & Jerv. 

3 Buxton v. Garfil, id. 287. 118. 

4 Henslow v. Fawcett, 3 A. & E. 51. 8 17 & 18 Vict. c. 102, s. 36. 

5 17 & 18 Vict. c. 102, s. 23 ; Corrupt 9 Youghall Election, 3 Ir. K. C. L, 530. 

Practices Act, 1872. See Hargreaves v. 
Simpson, 4 L. R. Q. B. Div. 403. 



405 

voter, in order to induce any voter to vote, or refrain from voting, 
* or shall corruptly do any such act as aforesaid, on account of 
any voter having voted, or refrained from voting, * shall be 
guilty of a misdemeanor : * Provided, That the aforesaid enact- 
ment shall not extend, or be construed to extend, to any money 
paid, or agreed to be paid, for, or on account of, any legal 
expenses, bona fide incurred, at, or concerning, any election." 1 An 
election of member of parliament was about to be held at C; and 
S. was one of the candidates. In his committee room, the question 
whether the payment of the expense of bringing voters to the polls 
was legal, was discussed. S., after referring to a law book, said 
that it was legal to pay such expenses, when actually incurred. 
A circular had been previously prepared and printed, requesting 
voters to come up and vote for S. Upon this declaration of the 
opinion of S., a clerk to an agent of S. (without any express direc- 
tion from S. or the agent) wrote at the bottom of each circular : 
"Your railway expenses will be paid." A voter, who resided at 
H., received one of the circulars, with the added note; he came 
to C, voted for S., and afterwards received the sum of 8s., which 
was the amount of the expenses which he had bona fide incurred, 
on his journey. It was held, by the court of queen's bench, that 
the words added to the circular must be treated as written by the 
authority of S. ; that the promise and payment were forbidden 
by the statute cited ; and, for the purposes of that statute, they 
must be treated as corruptly made. The court of exchequer 
chamber reversed the judgment of the queen's bench. But the 
house of lords reversed the decision of the exchequer chamber, 
and affirmed that of the queen's bench. 3 

§ 485. A promise, by a candidate, to release a debt, in the event 
of his election, in consideration of the debtor's assistance in the 
canvass, is void. 3 A promise made in consideration of influence 
and services in favor of the nomination, or appointment, of another 
to office, or of a resignation in another's favor, is void. 4 Under a 
statute, declaring that no candidate "shall pay, or contribute, 
either directly, or indirectly, any money, or other valuable thing, 
or knowingly allow it to be done, by others, for him, either 

1 17 & 18 Vict. c. 102, s. 2. 4 Duke v. Ashbee, 11 Ired. 112 ; Nichols 

2 Cooper v. Slade, 6 H. L. Cas. 746. v. Mudgett, 32 Verm. 546; Meacham v. 

3 Nichols v. Mudgett, 32 Verm. 546. Dow, id. 721. 



406 

for the nomination, election, or appointment, except necessary 
expenses," 1 as specified, a judgment note, given to a candidate 
for election, in consideration of his withdrawal in favor of another 
candidate, is void, and cannot be enforced ; it does not become 
an executed contract, upon the entry of judgment, so as to pre- 
clude judicial inquiry into the consideration of the note. 2 A debt, 
contracted for liquors and other refreshments furnished, and ser- 
vices performed, for a candidate, as such, during a parliamentary 
election, is a debt " referring to, arising out of, or dependent upon, 
a parliamentary election," and is incapable of collection. 3 When 
the statute prohibits candidates from furnishing, to voters, any 
money, meat, drink, entertainment, or provision, after the teste 
of the writ of election, no recovery can be had for provisions 
furnished to a voter at the request of a candidate. 4 An action 
cannot be maintained against a candidate, on a promise to con- 
tribute to the expenses of the election, made in violation of the 
law, even though the gross expenses include items, not within 
the prohibition of the statute, amounting to more than the de- 
fendant's subscription. 5 Under a statute making it unlawful " to 
contribute money, for any purpose intended to promote the elec- 
tion of any particular person or ticket, except for defraying the 
expenses of printing, and the circulation of votes, hand-bills and 
other papers, previous to any such election," it was held that an 
agreement to pay a certain sum, for erecting and maintaining a 
log cabin, for the use of one of the political parties and its candi- 
dates, was void. But subsequently this decision was questioned, 
and it was held that a recovery could be had for services rendered 
in pitching and striking a tent used for the same purposes. 6 

§ 486. While a candidate, who, for the purpose of influencing 
the voters, promises to pay, into the county treasury, a part of 
the fees of the office, is guilty of offering a bribe to the voters, 7 
contributions for the erection of county buildings, offered to secure 
the removal of a county seat, do not constitute bribes. 8 The 
offer of a public building, in consideration of the removal of the 

1 Stat. Penn. April 18, 1874. 6 Jackson v. Walker, 5 Hill, 27; Hurley 

2 Ham v. Smith, 87 Penn. St. 63. Vm Van Wagner, 28 Barb. 109. 
Mottashed v. Read, 23 U. C. Q. B. » Carrothers «. Russell, 53 Iowa, 346. 

8 Hawes v. Miller, 56 id. 395 ; Hall 



432. 



4 Ribbans v. Crickett, B. & P. 264. „. Marshall, 80 Ky. 552. 

5 Foley v. Speir, 100 N. Y. 552. 



407 

county seat, is the offer of a benefit to the public, and not to indi- 
viduals, and is in no sense bribery. 1 A vote given for a candi- 
date for a public office, in consideration of his promise to donate 
a sum of money, or other valuable thing, to a third party, in case 
of his election, whether such party be an individual, a county, or 
any other corporation, is void. It is unlawful for a candidate, for 
a public office, to make offers to the voters to perform the duties 
of the office, if elected, for less than the legal fees. An election 
secured by means of such offers is void. 2 A statute, which directed 
a vote to be taken on the question of the removal of the county 
seat, declared subscriptions and donations, made for the erection 
of public buildings, valid and binding, in case the vote should be 
in favor of the removal. Upon a contest of an election held under 
this statute, it was contended that the statute was unconstitutional, 
because it offered a bribe for votes in favor of the removal. But 
it was held that, if the statute was unconstitutional, it was so only 
so far as to render the subscriptions and donations void ; that the 
law being, in other respects, constitutional, the election, under it, 
was not void ; and that the courts had no power to relieve against 
the effects of the inducements which had operated favorably to 
the removal. 3 It is not bribery to offer facilities for the public 
convenience of the whole county, as an inducement to remove a 
county seat, or to offer a public advantage to an entire community, 
as an inducement to the members of such community to vote for 
the removal. 4 

§ 487. On the hearing of a petition against the election of a 
member of parliament, the judge reported that it was proved that 
he " was guilty of a corrupt practice, at the election, within the 

1 Wells v. Taylor, 5 Mont. 202. Cer- involve, the integrity of the government, 

tainly such an offer would seem to be an and the preservation of the principles 

offer of a pecuniary benefit to individual upon which it is founded, while the latter 

tax-payers. In the case of Hawes v. is only a matter of public convenience, 

Miller the court, adopting the language or pecuniary interest, involving no fun- 

of the supreme court of Wisconsin, in damental principle whatever." 

State ®. Purdy, 36 Wis. 224, said : " The 2 State v. Collier, 72 Mo. 13 ; Newell v. 

distinction between the election of pub- Purdy, 36 Wis. 213. See also Tucker v. 

lie officers, to whom, for the time being, .Aiken, 7 N. H. 140; Alvord v. Collin, 

the exercise of the functions of sover- 20 Pick. 428. 

eignty is entrusted, and the mere choice 3 Supervisors v. Davis, 63 111. 405. 

of a site for a public building, is quite 4 Dishon v. Smith, 10 Iowa, 212. 
apparent. The former involves, or may 



408 

true intent and meaning of the Corrupt Practices Prevention Act, 
1854." And he further reported that " the nature of such corrupt 
practice was the promising, before and at the time of the election, 
to certain voters for the borough, and other inhabitants, that he 
would, in the event of his being returned, at the election, and 
after such return, give to such voters, and other voters and inhabi- 
tants of the borough, an entertainment, consisting of meat and 
drink, with the view and intent to induce such voters to vote for 
him, at such election." It was held that it was not expressly 
found, by the report, and did not appear, by necessary intendment 
therefrom, that bribery had been " committed by, or with the 
knowledge and consent " of, the member elect, and it was adjudged 
that he was not, under the parliamentary elections act of 1868, 1 
incapable of being registered, as a voter, in the United Kingdom. 2 
§ 488. In Massachusetts the fact that a representative elect 
" treated " the voters, at the nominating convention, is not a suf- 
ficient ground for setting aside the election. 3 Where it appeared 
that a member elect of the house of representatives of Massachu- 
setts had furnished numbers of the electors, both before and after 
the election, with refreshments, at his own expense, the election 
was not thereby invalidated. 4 Where a seat was claimed by a man 
who was not returned as elected, and it was proved that he had 
offered to " treat " voters, and authorized others to do so, before 
the election, the house declined to act on the petition. 5 It was 
held that the house of representatives of Massachusetts had no 
power to suspend a member, charged with bribery and corruption, 
pending an investigation of the charges. 6 Under a statute pro- 
viding that the election of any person, declared duly elected to a 
county office, may be contested, by any elector of the county, 
" when the contestee has given, or offered, any elector, or any 
judge, clerk, or canvasser of the election, any bribe, or reward, in 
money, property, or thing of value, for the purpose of procuring 
his election," 7 it was held, by the supreme court of Kansas, that 
the contestee's title to the olfice could not be defeated by showing 
that, in order to promote his election, he deposited money with 



J 31 and 32 Vict. c. 125, s. 43. 

2 Grant v. Pagham, 26 W. R. 169. 

3 Williams' case, C. S. & J. 383. 

4 Keeler's case, id 55. 



6 Fuller's case, C. S. & J. 366. 

6 Pratt's case, id. 17. 

7 Gen. Stat. Kan. p. 424. 



409 

a supporter, to be expended in the purchase of spirituous liquors, 
for the use of voters generally, and paid money to other persons, 
for their services, in canvassing and soliciting votes. 1 Proof that 
money was promised and paid to different persons, without the 
knowledge of a candidate, in consideration of their influence in 
favor of such candidate, or their services, in the distribution of 
tickets at the polls, is not sufficient to establish a charge of 
bribery. 2 A candidate will not be held responsible for improper 
acts, performed by his supporters, without his consent, or knowl- 
edge, unless such acts affect the result of the election. 3 

§ 489. A promise to pay a voter's travelling expenses, on condi- 
tion that he will vote for the promisor, is within the prohibition 
of an act of parliament, making it a penal offence to promise money, 
to a voter, in order to induce him to vote, or corruptly to give 
money, to a voter, ■" on account of such voter having voted." But 
an unconditional promise to pay his travelling expenses is not 
repugnant to the statute. 4 Payment of first-class railway fare, to 
voters who have travelled to the polls in third-class cars, without 
the knowledge of the person making such payment, is not illegal. 5 
The distribution, among voters, of checks redeemable in liquor 
and cigars, at a saloon near the polls, and the distribution, in the 
ward room, at noon, during the election, of a small quantity of 
refreshments, by members of the political party of which the 
returned representative was a candidate, and the payment of a 
part of the expenses of the campaign, by the representative, if such 
acts be not shown actually to have influenced voters, or to have 
been authorized, consented to, or knowingly ratified, by such 
member, will not invalidate the election. 6 Giving a voter &freepass 
to the polling place, by railway or boat, without stipulations or 
conditions affecting his vote, is not within the prohibition of a 
statute declaring that " the hiring, or promising to pay, or paying, 
for any horse, team, carriage, cab, or other vehicle, by any candi- 
date, or by any person on his behalf, to convey any voter, or voters, 
to, or from, the poll, or to, or from, the neighborhood thereof, at 
any election, or the payment, by any candidate, or by any person 

1 Moonlight v. Bond, 17 Kan. 351. 5 Rigdon v. Passmore, 44 L. T. N. S. 

2 Cox v. Strait, Smith, 428. 192. 

3 Duffy v. Mason, 1 Ells. 361. 6 Prescott v. Crossman, L. & K. 303. 

4 Cooper v. Slade, 6 El. & Bl. 447. 



410 

on his behalf, of the travelling and other expenses of any voter, in 
going to, or returning from, any election, are and shall be unlawful 
acts," 1 but giving a ticket, which has been paid for, under such 
circumstances, is forbidden by the statute. 2 Under an act of 
parliament, declaring that, if any person shall ask, receive, or take, 
any reward " to give his vote, or to refuse, or forbear, to give his 
vote, in such election," 3 he shall be liable to punishment as pre- 
scribed, it is not an offence for a voter to receive money, after the 
election, for having voted for a particular candidate, no agreement 
having been made, before the election, for such payment. 4 

§ 490. In an action for bribery, it is immaterial whether the 
party corrupted had a right to vote, or not, if he claimed the 
right, and the corrupter thought he had it. 5 An action for par- 
liamentary bribery will lie, although the party bribed does not 
vote according to the bribe. 6 The offence of bribery is complete, 
under 2 Geo. 2, c. 24, s. 7, so far as the corrupter is concerned, on 
payment of the bribe, whether the elector has, at the time of 
receiving it, any intention of voting according to the bribe, or 
not. 7 When, upon the petition of an unsuccessful candidate, a 
recriminatory case of bribery is pressed against him, and fails, on 
a petition against him, as the successful candidate at the next 
election, cases of bribery by and for him, at the first election, may 
be inquired into, if not known, after due diligence, on the former 
trial, and therefore not investigated then. 8 

§ 491. When the evidence fails to show that money, expended 
by political committees, for purposes prohibited by law, was used 
to corrupt, or improperly influence, voters, such voters cannot be 
disfranchised. 9 When it was alleged, in the bill of particulars, 
that A. bribed B., on certain days, evidence of a promise by A. to 
B., made on an earlier day, not mentioned in the bill of par- 
ticulars, that B. should be bribed, was held admissible, as a 
link in the chain of proof. 1 ° Evidence of corruption, at previous 
elections, by the political party to which the petitioners belong, 

1 Stat. Dominion, 37 Vict. c. 9, s. 96. G Salston v. Norton, 3 Burr, 1235 ; 

2 Genereuxv. Cuttibert, 9 S. C. Canada, Henslow v. Fawcett, 4 N. & M. 585. 

102. See Harding ©. Stokes, 2 M. & W. 233. 

3 2 Geo. 2, c. 24, s. 7. 7 Henslow v. Fawcett, 3 A. & E. 51. 

4 Huntingtower v. Gardiner, 1 B. & C. 8 Stevens v. Tillett, 40 L. J. C. P. 58. 

297. 9 Duffy v. Mason, 1 Ells. 361. 

5 Lilley v. Corne, 1 Selw. N. P. 650, n. 10 Collins v. Price, 44 L. T. N. S. 192. 



411 

is irrelevant. 1 Evidence of numerous cases of individual '"treat- 
ing," not specified in the bill of particulars, is not admissible to 
prove general treating. 2 Evidence of corrupt payments, made, 
after an election, by an agent, is admissible. 3 When evidence of 
bribery, by an active supporter of the respondent, is given, the 
court will draw unfavorable conclusions from the neglect, or 
refusal, of the person so charged, to explain his conduct in the 
witness-box. 4 

§ 492. In any indictment, or information, for bribery, or undue 
influence, and in any action, or proceeding, for any penalty for 
bribery, treating, or undue influence, it shall be sufficient to allege 
that the defendant was, at the election, at, or in connection with, 
which the offence is intended to be alleged to have been com- 
mitted, guilty of bribery, treating, or undue influence (as the case 
may require). And in any criminal, or civil, proceedings, in rela- 
tion to any such offence, the certificate of the returning officer in 
this behalf shall be sufficient evidence of the due holding of the 
election, and of any person therein named having been a candidate 
thereat. 5 A statute imposing a forfeiture upon any person who 
" shall give, offer, or promise any reward, gift, favor, or benefit to 
any man, to hire, bribe, or influence him in giving his vote," 6 is not 
virtually repealed by a subsequent statute imposing a penalty upon 
any person, who " shall give, offer, or procure any money, goods, 
chattels, or other valuable thing, or matter, or release, or offer 
to release, any debt, or obligation, by way of bribe, gift, benefit, 
or rew T ard, for the purpose, or with the object, of influencing the 
vote of any voter." 7 There is a clear and distinct meaning to be 
attached to each of the words " give," " offer," " promise," and 
"procure," as used in the two statutes. To give a reward, by the 
way of bribe, is to pass, or deliver, the reward, or bribe, immedi- 
ately to another. To offer it is to present it, for acceptance, or 
rejection. To promise it is to make a declaration, or engagement, 
that it shall be given. To procure it is to obtain it from others. 8 
Bribery, at a municipal election, is a misdemeanor, punishable by 
the common law of the state of Maine. 9 

1 Spencer V.Harrison, ML. T. N. S. 283. ' 6 Stat. Del. vol. 6 (1825), p. 418, s. 24. 

2 lb. 7 Id. vol. 10 (1845), p. 36, s. 3. 

3 Buxton v. Garni, 44 L. T. N. S. 287. 8 State v. Harker, 4 Harrington, 559. 

4 Collins v. Price, id. 192. 9 State v. Jackson, 73 Me. 91. 



26 & 27 Vict. c. 29, s. 6. 



412 

A statutory provision that, "if any person shall, by bribery, 
menace, wilful falsehood, or other corrupt means, attempt to influ- 
ence any elector, in this state, in giving his vote, or ballot, or to 
induce him to withhold the same, * at any election in this state, he 
shall, on conviction thereof, be deemed guilty of a misdemeanor," 1 
extends to elections of representatives in congress as well as 
of state and county officers. 2 Bribery of a voter by a sheriff, pre- 
vious to his election, is not an infamous crime, within the meaning 
of the ninth section of the sixth article of the constitution of Penn- 
sylvania, a conviction of which will disqualify him from holding that 
office. 3 * Under 17 & 18 Yict. c. 102, and 35 and 36 Yict. c. 60, a 
person may be prosecuted for each act of bribery. 4 When the 
offence is complete, before the return, the return is not requisite to 
prove the election. 5 In an action for bribery, it is not enough to 
show that an election was held, de facto, and that the defendant 
bribed a person, who voted as an elector on that occasion ; a regular 
election should be proved. 6 The offence of corrupting a voter is 
complete when the bribe is offered and accepted and the voter 
promises to vote in pursuance of the corrupt contract, although he 
may break his promise, or may never have intended to perform it ; 
but when a bribe is offered, and not accepted, the offence is that 
of offering to corrupt ; and it is for the jury to say whether there 
was a complete agreement or not. 7 

§ 493. If, at any election of a member, or members, to serve in 
parliament, for any county, city, or borough, any person shall know- 
ingly personate, and falsely assume to vote in the name of, any 
other person, whose name appears on the register of voters, then in 
force, for any such county, city, or borough, whether such other 
person shall then be living, or dead, or, if the name of the said other 
person be the name of a fictitious person, every such person shall 
be guilty of a misdemeanor, and, on being convicted thereof, shall 
be punishable by imprisonment, for a term not exceeding two 
years, together with hard labor. 8 Where the contestant claimed 
that voters were personated, and supported his claim by the testi- 
mony of a number of voters that they did not vote, a copy of the 

1 Stat. Tex. Aug. 15, 1873, c. 78, s. 54. 5 Eegina v. Clark, 1 F. & F. 654. 

2 State v. Franks, 38 Tex. 640. 6 Reed v. Lamb, 6 H. & N. 75. 

3 Commonwealth v. Shaver, 3 Watts & 7 Harding v. Stokes, 2 M. & W. 233. 
S. 338. ' 8 6 & 7 Vict. c. 18, s. 83. See Kegina 

4 Milnes v. Bale, 23 W. R. 660. v. Bent, 1 Den. C. C. 157. 



413 

voting list, made by clerks of the contestant, cannot be received 
for the purpose of showing that the names of such persons were 
checked as having voted, although the checks had been erased, 
after the copy was made, in order that the list might be used, at 
a subsequent election. 1 Parties charged with personation in 
England are immediately arrested and held for trial. 2 On the trial 
of an indictment for personating a burgess, at an election of a 
councillor for a ward of a borough divided into wards, under 5 and 
6 W. 4, c. 7, it is enough for the prosecutor to show that the per- 
sonation took place at what purported to be a ward election for 
that ward ; it is not necessary to prove the due division of the 
borough into wards, or to show that such division was approved 
by the privy council. 3 If an elector vote twice, at the same elec- 
tion, his second vote will be excluded from the canvass. 4 An 
election will be set aside, if rendered uncertain by the votes of 
repeaters. 5 

§ 494. In England bribery at elections, which disqualifies voters, 
includes wagers. 6 A wager between two voters, on the election of 
a member of parliament, laid before the poll begins, is illegal, 
because it places the parties under a pecuniary influence similar 
to that of a bribe. 7 At common law, an action for a wager is 
maintainable, in certain cases ; but a wager, which is against the 
principles of sound policy, is void, and cannot be recovered. Such 
is a wager on the result of an election. It may involve an inquiry 
into the validity of the election, and is therefore opposed to public 
policy. 8 It has often been regretted that actions upon idle wagers 
should ever have been entertained in courts of justice. The practice 
seems to have prevailed, before that full consideration of the sub- 
ject which has been had in modern times ; but the frequent discus- 

1 Stimson v. Boardman, L. & R. 171. 73 ; Da Costa v. Jones, Cowp. 729 ; 

2 6 Vict. c. 18, s. 86 : 13 & 14 Vict. c. Phillips v. Ives, 1 Eawle, 36; Morgan 
69, s. 93. v. Richards, 1 Browne, 171 ; Smith v. 

3 Regina v. Thompson, 2 M. & Rob. McMasters, 2 id. 182; Atherford v. 

335. Beard. 2 T. R. 610 ; Good v. Elliott, 3 

4 People v. Holden, 28 Cal. 123. T. R. 693 ; McAllister v. Hoffman, 16 S. 

5 Hathaway's case, C. S. & J. 175. & R. 147 ; Wroth v. Johnson, 4 Har. & 

6 Leigh & L. M. 1-19. McH. 284 ; Haskett v. Wootan, 1N.& 

7 Aliens Hearn, 1 T. R. 56. McC. 180; Wood v. Wood, 2 Murph. 

8 Bunn v. Riker, 4 Johns. 426 ; Burch 172 ; McAllister v. Haden, 2 Camp. 436 ; 
v. Keeler, 5 Wend. 250 ; Burt v. Gott, Hussey v. Crickett, 3 id. 168 ; Brown v. 
9 Cow. 169 ; Jones v. Randall, Cowp. Leeson, 2 H. Blackst. 43. 



414 



sion of it, in these times, lias so far satisfied the minds of most 
lawyers that they are now agreed that objections would have been 
sustained in many cases of wagers that have been decided with- 
out noticing such objections ; and it is now clearly settled that 
the subject-matter of a wager must be perfectly innocent, and must 
not tend to immorality, or be opposed to public policy. 3 A wager 
upon the result of an election for president of the United States, 
laid after the election of the members of the legislature by the 
people, and before the choice of the members of the electoral college 
by the legislature, is contrary to public policy, and no action can 
be maintained for its recovery. 2 Betting on an election was never 
a crime at common law. The offence is purely statutory, and may 
be punished by civil action, or indictment, or both. In Kentucky 
the punishment, under the indictment, and in the civil action, con- 
stitutes but one punishment. 3 



1 Gilbert v. Sykes, 16 East, 157. 

2 Loyal v. Myers, 1 Bailey, 486. 

3 Commonwealth v. Avery, 14 Bush 
625. Courts of justice are constituted 
for the purpose of deciding questions of 
right actually existing between parties, 
and are not bound to answer whatever im- 
pertinent questions persons think proper 
to ask them, in the form of an action 
upon a wager. And even if there be 
nothing immoral in the subject of a par- 
ticular wager, it is extremely imprudent 
to attempt to compel the court to give 
an opinion upon an abstract question of 
law, not arising out of pre-existing cir- 
cumstances, in which the parties had an 
interest. The court will not try an ac- 
tion, upon a wager, on an abstract ques- 
tion of law, or judicial practice, not 
arising out of circumstances really exist- 
ing, in which the parties have a legal in- 
terest. Henkin v. Guerss, 12 East, 247. 
At common law a wager has been, in gen- 
eral, recoverable, when the subject of it 
has had no immediate tendency to a 
breach of the peace, or to the injury of the 
feelings, character, or interests, of third 
persons ; when it has not been opposed to 
good morals, or to public policy, nor pro- 
hibited by statute. It has been held that 



a wager between two sons, as to which of 
their two fathers would die first, was 
legal. Earl of March t>. Pigot, 5 Burr. 
2802. A wager that A. had purchased a 
wagon of B. has been sustained. Good v. 
Elliott, 3 T. R. 693. So also has a wager 
upon the event of a judicial determina- 
tion, Jones v. Randall, Cowp. 37 ; a wager 
upon the rules of a game not prohibited 
by law, Pope v. St. Leger, 1 Salk. 344 ; 
and a Wager upon the restoration of an 
exiled king, Andrews v. Hearne, 1 Lev. 
33. 

The following cases have been held to 
be within the exceptions to the general 
rule : Where the wager is upon the result 
of a boxing match, Cotten v. Thurland, 
5 T. R. 405 ; upon the sex of a third per- 
son, Da Costa v. Jones, Cowp. 729 ; upon 
the result of an election of public officers, 
Allen v. Hearn, 1 T. R. 56 ; Bunn v. 
Riker, 4 Johns. 426 ; Lansing v. Lansing, 
8 id. 454 ; respecting the amount of 
any branch of the public revenue, Ather- 
fold v. Beard, 2 T. R. 610 ; Shirley v. 
Sankey, 2 Bos. & Pul. 130 ; on lottery 
tickets, Mount -». Waite, 7 Johns. 434; 
where the tendency of the wager is to 
induce a public officer to violate his duty, 
or where it is a cover for usury, Jones v. 



415 



§ 495. In the United States a wager upon the result of an election, 
whether laid before or after the election, is illegal and void ; and it 
cannot be enforced by suit. 1 Where betting on elections is pro- 



Kandall, Cowp. 39. See note to Henkin 
9. Guerss, 12 East, 247 ; also opinion of 
court in Loyal 9. Myers, 1 Bailey, 486. 
In Gilbert v. Sykes, 16 East, 157, Lord 
Ellenborough said : " It is no new prin- 
ciple, in the law, that if a contract have 
a tendency to a mischievous and perni- 
cious consequence, it is void. I am aware 
that in old cases, precedents of which 
are to be found in Hearne's Pleader, ac- 
tions have been maintained upon wagers 
open to an objection of this sort, but 
not decided upon that ground, which 
was not adverted to. The first of these 
reported is Andrews 9. Hearne, 1 Lev. 
33, where the bet was upon the life of 
one who was held to be king dejure, and 
yet no point was made as to the validity 
of the contract on the ground of its im- 
policy." Le Blanc, J., speaking of this 
case of Andrews 9. Hearne, said : " I have 
no hesitation in saying that that bet 
would never have been sustained in these 
days." Lord Ellenborough also observ- 
ed, in reference to the case of Da Costa 
9. Jones, Cowp. 729, which was based 
upon a wager respecting the sex of a third 
person, that "it was brought several 
times before the court, before any ob- 
jection was taken on the ground of its 
immoral tendency." The case, in which 
the question of the legality of wagers, 
in England, is said to have been first fully 
considered, is Da Costa 9. Jones, Cowp. 
729, decided in 1778. But in Walkhouse 
9. Derwent, decided in 1747, W. Bl. 19, 
a wager had been laid, by counsel,. that 
the court of king's bench would quash a 
certain order, which had been confirmed 
by the court of quarter sessions, and ar- 
ticles were drawn by which the defend- 
ants agreed to bring a certiorari to try 
it. On default of the defendants, plain- 
tiff brought an action on the articles. 
The court said : ' ' We desire the gentle- 
men would make an end of it between 



themselves, and not let us hear any more 
of it, it being a very improper thing." 
Sir "William Blackstone's syllabus of the 
case is this: "Court will not decide 
wagers." 

In Allen 9. Hearn, 1 T. K. 56, a wager 
between two voters on the election of a 
member of parliament, laid before the 
poll began, was held to be illegal because 
it laid the parties under a pecuniary in- 
fluence similar to that of a bribe. In 
Brown 9. Leeson. 2 H. Bl. 43, the action 
was brought upon a wager, on the ques- 
tion " whether there are more ways than 
six of nicking seven on the dice, allow- 
ing seven to be the main, and eleven a 
nick to seven." The court of common 
pleas refused leave to return the declara- 
tion, which had been stricken from the 
record by Lord Loughborough. 

In Jones 9. Randall, Cowp. 39, the 
court held that an action would lie to 
recover money, won -upon a wager, on 
the question ' ' whether a decree of the 
court of chancery would be reversed, or 
not, on appeal to the house of lords ;" 
unless the motive were fraud or other 
turpis causa. In Foster v. Thackery, 
the wager was that war would be de- 
clared against France, within three 
months. The opinion of the twelve 
judges was taken on the question whether 
that wager was void, under the statute, 
14 G. 3, c. 48. The court of king's bench 
and common pleas were of opinion that 
it was, and the court of exchequer contra. 
No judgment was ever rendered in the 
case. 

1 Loyal v. Myers, 1 Bailey, 486 ; Rey- 
nolds 9. McKinney, 4 Kan. 94 ; Jennings 
9. Reynolds, id. 101 ; Johnston 9. Rus- 
sell, 37 Cal. 760; Smith 9. McMasters, 
2 Browne, 182 ;. Bunn 9. Riker, 4 Johns. 
426; Lansing 9. Lansing, 8 id. 354; 
Vischer 9. Yates, 11 id. 28. 



4:16 

hibited by statute, moneys deposited in the hands of stake -holders, 
on such wagers, are deposited without consideration, to be repaid on 
demand of the depositors, or attached by their lawful creditors. 1 In 
the absence of statutory prohibition, wagers upon the result of 
elections are against public policy ; and money, placed in the hands 
of a stake-holder, may be recovered, if the wager be repudiated, 
and a return of the money demanded, at any time before, but not 
after, the election has taken place, and t the result has become 
generally known. 2 Money lent to and used by the borrower, 
for the purpose of accomplishing an illegal object, cannot be 
recovered ; and the question whether a demand, connected with 
an illegal transaction, can be enforced at law depends on the 
question whether the plaintiff requires any aid, from the illegal 
transaction, to establish his claim. Where a party lends money, 
to be bet upon an election, and the borrower makes the bet 
accordingly, and afterwards promises the lender to repay the same, 
and the lender brings his action upon the subsequent promise to 
recover the money, it is not sufficient to prove such promise ; but 
it must be shown that it was based upon a new and sufficient 
consideration. 3 Under a statute authorizing the assignment of 
promissory notes, it is no defence to an action upon a note, brought 
by the assignee against the maker, where the note was assigned 
before maturity, for a valuable consideration, without notice, that 
the consideration of the note, as between the maker and payee, 
was a wager on the result of the presidential election, unless the 
statute expressly, or by implication, authorizes such defence. 4 
One of the jurors, in a contested election case, had, prior to the 
election, made a wager upon the result, which, by agreement, 
became a wager upon the final result of the trial, but failed to dis- 
close these facts, when questioned as to his qualifications for the 
office of juror. It was held that the juror was disqualified, and 
that a verdict rendered in favor of the party, upon whose success 
the juror had laid his wager, should be set aside. 5 

§ 496. It is a crime, at common law, for a person, who is not an 
officer of election, to deposit false and fraudulent ballots in the 
ballot-box. It is a crime, at common law, to enter into a conspiracy 

1 Keynolds v. McKinuey, 4 Kan. 94. 4 Adams v. Woodbridge, 4 111. 255. 

2 Johnston v. Kussell, 37 Cal. 760. 5 Seaton v. Swem, 58 Iowa, 41. 

3 Bates v. Watson, 1 Sneed, 376. 



417 

to commit any offence against the purity and fairness of a public 
election. The making of a false and fraudulent entry, in the poll- 
book of an election, by a person who is not an officer of election, 
is a crime, at common law. Offences against the purity and fairness 
of public elections are crimes, at common law, and indictable as 
such. 1 Any cockade, ribbon, or other mark of distinction, is 
prohibited being given, or provided, by a candidate, or his agents, 
directly or indirectly, and a person so giving, or providing, them, 
incurs a forfeiture of two pounds. 3 Proof that rumors of miscon- 
duct, on the part of a candidate, or of his supporters, were current, 
without proof of the truth of such rumors, is incompetent. 3 Where 
the officers of an election endeavor to hold the election fairly, and 
to discharge their whole duty, the fact that votes were fraudulently 
cast will not invalidate their returns. Their returns will constitute 
prima facie evidence of the result, subject to correction by further 
proof. 4 Misrepresentations made to voters, by the contestee, to 
the effect that the legal consequence of the erasure of his name, 
from the ballot, and the insertion of that of the contestant, would 
be that the ballot would not be counted, constitute no ground for 
contesting the election. 5 A bond, under penalty of five hundred 
merks, and also " of being esteemed infamous and unfit for society," 
entered into by the majority of the electors of a borough, binding 
themselves, in the choice of magistrates, " to give their votes to such 
persons as the major part of them shall think most worthy," is 
contra bonos mores, and invalidates the election. 6 A noisy dis- 
turber of a parliamentary election may be arrested by order of the 
sheriff. 7 

1 Commonwealth v. McHale, 97 Penn. s Duffy v. Mason, 1 Ells. 361. 

St. 397. See also Commonwealth v. Sils- 4 Supervisors v. Davis, 63 111. 405. 

bee, 9 Mass. 417 ; Commonwealth v. 5 Applegate v. Eagan, 94 Mo. 258. 

Hoxey, 16 id. 385 ; 1 Bishop Crim.Law, 6 Hoggan v. Wardlaw, Cr. & St. 148. 

s. 358 (1st ed.) ; 1 Wharton Crim. Law, 7 Spelsbury v. Micklethwaite, 1 Taunt, 

s. 6 (6th ed.) 146, 

3 17 and 18 Vict. c. 102, s. 7. 

27 



CHAPTEE XXII. 

PROCEEDINGS— Continued. 



Secs. Secs. 



1. Mandatory and directory require- 

ments .... 497,498 

2. Misconduct of officers of election 

which is fatal to the election, 

or to the return . . 499-501 



3. Irregularities which are not 

fatal .... 502-506 

4. Active partisanship of officers . 507 

5. Intoxication of officers . . 508 

6. Absence of officers . . . 509 



§ 497. The disregard of directory requirements of law, by voters, 
or by officers of registration or election, is not, in the absence of 
fraud, a sufficient ground for rejecting the entire poll of a precinct. 
But a violation, by electors, or officers, of a mandatory requirement 
of law, which changes or materially affects the result, is, even in the 
absence of fraud, a sufficient ground for rejecting an entire poll, 
when it cannot be purged. Statutes prescribing, in affirmative 
language, specific duties for electors, or officers of registration or 
election, are directory, unless the acts prescribed are, in their 
nature, essential to the validity of the election. Statutes expressly 
declaring specified acts, or omissions, fatal to the validity of an 
election, or expressly prohibiting the performance, or omission, 
of specified acts, are mandatory. While statutory provisions, pre- 
scribing acts which are, in their nature, absolutely essential to the 
validity of the election, may be mandatory, in whatever phrase- 
ology expressed, the most unimportant requirements may be made 
mandatory, by a clear expression of the legislative will. Obviously 
there is room for a diversity of judicial opinion as to what acts or 
classes of acts are essential to the validity of an election. Ques- 
tions affecting the purity of elections are of vital importance 
to the successful issue of our experiment of self government. 
The problem is to secure to the voter, first, a free, untrammeled 
vote, and, secondly, a correct return of the vote. It is mainly with 
reference to these two results that the rules for conducting elec- 
tions are prescribed by the legislative power. But these rules are 
only means. The end is the freedom and purity of the election. To 
hold these rules all mandatory and essential to a valid election is 



418 



419 

to subordinate substance to form — the end to the means. Yet, on 
the other hand, to permit a total neglect of all the requirements 
of the statute, and still sustain the proceedings, is to forego the 
lessons of experience, and to invite a disregard of those provi- 
sions which have been found conducive to the purity of the ballot- 
box. Ignorance, inadvertence, mistake, or even intentional wrong, 
on the part of local officials, should not be permitted to disfran- 
chise a district. Yet rules and uniformity of procedure are as 
essential to secure truth and exactness in elections, as in anything 
else. Irregularities invite and conceal fraud. But, unless a fair 
consideration of the statute shows that the legislature intended 
compliance with the provision, in relation to the manner of pro- 
cedure, to be essential to the validity of the election, it is to be 
regarded as directory merely. 1 

§ 498. In general those statutory provisions, which fix the day 
and the place of the election, and the qualifications of the voters, 
are substantial and mandatory, while those, which relate to the 
mode of procedure, in the election, and to the record and return 
of the results, are formal and directory. 2 Statutory provisions 
relating to elections are not rendered mandatory, as to the people, 
by the circumstance that the officers of the election are subjected 
to criminal liability for their violation. 3 The rules, prescribed 
by the law for conducting an election, are designed chiefly to afford 
an opportunity for the free and fair exercise of the elective fran- 
chise, to prevent illegal votes, and to ascertain, with certainty, the 
result. Generally such rules are directory, not mandatory ; and a 
departure from the mode prescribed will not vitiate an election, if 
the irregularities do not deprive any legal voter of his vote, or admit 
an illegal vote, or cast uncertainty on the result, and have not 

^illiland v. Schuyler, 9 Kan. 569; 526; Fry v. Booth, 19 Ohio St. 25 ; Locust 

Jones v. State, 1 id. 279. Ward Election, 4 Penn. Law Journal, 

2 People i>. Schermerhorn, 19 Barb. 540 ; 341 ; Piatt v. People, 29 111. 54. 
People v. Cook, 8 N. Y. 67 ; Tucker v. 3 Gorham v. Campbell, 2 Cal. 135 ; 

Commonwealth, 20 Penn. St. 484 ; Chad- Sprague v. Norway, 31 id. 173 ; Keller 

wick v. Melvin, 68 id. 333 ; Dickey v. v. Chapman, 34 id. 635 ; Day v. Kent, 

Hurlburt, 5 Cal. 343; People v. Murray, 1 Oregon, 123 ; People v. Bates, 11 Mich. 

15 id. 321 ; Knowles v. Yeates, 31 id. 362 ; Taylor v. Taylor, 20 Minn. 107 ; 

82 ; Marshall v Kerns, 2 Swan, 68 ; Fos- McKinney v. O'Connor, 26 Tex. 5 ; Jones 

ter v. Scarff, 15 Ohio St. 535 ; Common- v. State, 1 Kan. 279 ; Hardenburg -», 

wealth v. Commissioners, 5 Bawle, 75 ; Bank, 2 Green, 68.* a 
Miller «. English, 1 Zab. 317 ; 2 Parsons, 



420 



been occasioned by the agency of a party seeking to derive a benefit 
from them. 1 



: Gass v. State, 34 Ind. 425 ; Piatt v. 
People, 29 111. 54. 

The election law of Tennessee required 
that the county courts should appoint 
the inspectors of elections, and that the 
inspectors and clerks should, before pro- 
ceeding to business, be sworn ; that the 
sheriffs should themselves, or by their 
deputies, hold the elections ; that the 
sheriffs should provide the ballot-boxes ; 
that the ballot-boxes should be locked, or 
otherwise well secured, until the close of 
the election, and should be sealed up the 
first night after the commencement of the 
election, by the sheriffs or returning offi- 
cers, the seals being placed on the aper- 
tures of the boxes ; and that the inspect- 
ors should take charge of the boxes, until 
the seals should be removed at the open- 
ing of the polls the next day. 

The committee found that, at one pre- 
cinct, the inspectors, clerks, and sheriff 
were in favor of the sitting member, and 
some of them had made bets on the elec- 
tion ; that, at the same precinct, after the 
close of the polls, on the evening of the 
first day of the election, the inspectors 
sealed up the ballot-box, and directed the 
sheriff to lock it up, in some safe place, 
and the sheriff locked it up, in a trunk, 
in one of the rooms of the store-house of 
parties who were not officers of the elec- 
tion, the sheriff retaining the key of the 
trunk, and one of the proprietors of the 
store-house keeping the key of the build- 
ing ; that the friends of the contestant, 
learning the facts, on the same evening, 
complained of this disposition of the bal- 
lot-box, and demanded its removal, but, 
the inspectors having dispersed, the 
sheriff declined to interfere further with 
the box ; that on the second morning the 
inspectors, learning that complaints had 
been made, sent one of their own num- 
ber, with the sheriff and one of the elect- 
ors, after the box, which was delivered 
to them apparently intact, and was kept 



sealed until the close of the election, an- 
other box being used on the second day ; 
that the box, when opened, contained 
the same number of ballots that had 
been deposited in it, of which the con- 
testant had a majority of one hundred 
and forty-two ; that the sheriff had fre- 
quently said, before the election, that the 
contestant should not have a majority in 
the county, and that he would see to 
that ; that he had, upon some occasions, 
claimed the right to keep the box, and 
sworn that he would do so, but the box 
was, in fact, disposed of according to 
the directions of the inspectors ; and that 
the inspectors, clerks and sheriff, and 
the proprietors of the store-house, were 
all esteemed as men or" integrity. 

The committee found that, at another 
precinct, a large gourd was used as a bal- 
lot-box, and at the close of the poll, on 
the evening of the first day, was carefully 
stopped and tied up in a handkerchief, 
and delivered to one of the inspectors 
for safe keeping, and was taken home by 
him and locked up, until the next morn- 
ing, and used the next day ; that there 
was no evidence of fraud, or mismanage- 
ment, in any other way ; that the con- 
testant received about one-third of the 
votes ; and that the inspectors and clerks 
were men of good character. 

The committee found that, at one pre- 
cinct, one of the inspectors kept a list of 
votes, which he believed to have been ille- 
gally cast, not exceeding eight in number, 
and, after the votes were all counted, the 
inspector deducted the illegal votes from 
the aggregates of the candidates for 
whom they were supposed to have been 
cast, taking more from the sitting mem- 
ber than from the contestant. They 
found that one of the inspectors, who 
was reputed to be a relative of the sit- 
ting member, and was connected by mar- 
riage with the other inspectors and with 
the sheriff, kept the ballot-box, locked 



421 

§ 499. Honest voters may lose their votes, through the crim- 
inal misconduct of dishonest officers of election. 1 While it is well 
settled that the mere neglect to comply with directory requirements 
of the law, or the performance of duty in a mistaken manner, 
without bad faith, or injurious results, will not justify the rejec- 
tion of an entire poll, it is equally well settled that when the 
proceedings are so tarnished by fraudulent, or negligent, or 
improper, conduct, on the part of the officers, that the result of 
the election is rendered unreliable, the entire returns will be 
rejected, and the parties left to make such proof as they may of 
the votes legally cast for them. 3 But, when fraud on the part of 
the officers of election is established, the poll will not be rejected 



and sealed, over night, at the house of 
the sheriff, another inspector keeping the 
key, and the box was returned, on the 
next day, apparently uninjured ; and that 
the inspectors and sheriff were men of 
unimpeachable integrity. They found 
that, at another precinct, one of the 
three inspectors appointed by the county 
court, being a justice of the peace, admin- 
istered the oath to the other inspectors, 
to the clerk, and to himself ; that, at the 
close of the day, the inspectors delivered 
the ballot-box to a blind merchant of the 
neighborhood, an uncle of the deputy- 
sheriff who held the election, who locked 
the key in his writing desk and delivered 
the key of the desk to the deputy-sheriff, 
retaining the key of the store door him- 
self, and, on the next morning, the box 
was redelivered to the inspectors, with- 
out apparent injury. 

The committee also found that the con- 
testant lent his horse to a minor, whose 
vote had been rejected at one precinct, 
to enable him to vote at another, and 
that the minor voted. 

It was decided by the committee that 
all of these elections, notwithstanding 
some irregularities in conducting them, 
had been managed, by the officers ap- 
pointed to hold the same, honestly and 
impartially, and according to the spirit 
and meaning of the law of the state of 



Tennessee, if not strictly within the let- 
ter of the statute, and that a fair expres- 
sion of .the public opinion had been ob- 
tained, at the several precincts men- 
tioned, with the single exception of the 
case of the minor. 

The committee further found that at 
one precinct, at which the contestant re- 
ceived a majority of the votes, neither the 
inspectors nor the clerks were sworn, and 
that two of the inspectors were support- 
ers of the contestant and one was a sup- 
porter of the sitting member. But they 
concluded that it was not necessary to de- 
cide whether the votes received at this 
precinct should be counted or rejected, 
because they would not, in either case, 
affect the result and could not in any 
event invalidate the election for the en- 
tire district. Arnold v. Lea, C. & H. 601. 
The committee reported unanimously in 
favor of the sitting member, and the 
house concurred by a vote of 149 to 20. 

1 Thompson v. Ewing, 1 Brewst. 67. 

2 Covode v. Foster, 2 Bart. 600 ; Mann 
v. Cassidy, 1 Brewst. 60 : Thompson v. 
Ewing, id. 67 ; "Weaver v. Given, id. 140 ; 
Thayer v. Greenback, id. 189 ; Washburn 
v. Voorhees, 2 Bart. 54 ; Dodge v. Brooks, 
id. 78; Knox v. Blair, 1 Bart. 521; 
Sloan v. Bawls, Smith, 144 ; Van Wyck 
v. Green, 2 Bart. 631 ; Barr's case, L. & 
K. 254 ; Supervisors v. Davis, 63 111. 405. 



422 

unless it shall prove to be impossible to purge it of the fraud. 1 
When the result, at a poll, as shown by the returns, is false and 
fraudulent, and it is impossible to ascertain the actual vote from 
the other evidence in the case, the vote of such poll must be 
wholly rejected. 3 

§ 500. The election papers tiled by the officers are to be con- 
sidered prima facie as true, but may be vitiated by faults and 
irregularities. Utter disregard of the law, amounting to strong 
evidence of bad faith, will destroy the returns as evidence. Where 
nearly half of the votes received were from persons not named 
on the list of taxables, and no reason was given, on the list, for 
the admission of the votes, adequate proof of the legality of each 
vote was required. Where the whole proceedings of the officers 
are tainted with fraud, the entire returns will be rejected. Where 
integrity is apparent, mere omissions will be disregarded ; but 
gross negligence and fraud' will vitiate the whole return. 3 A parlia- 
mentary election is void, by the common law of parliament, when 
so conducted that there is no real choice, by the constituency, 
or when not really conducted in obedience to the election law. 
But where the majority of voters have not been prevented from 
voting, and the election has been conducted in substantial con- 
formity with the law, the election will not be void, under the 
common law of parliament, notwithstanding there may have been 
mistake, or misconduct, in the use of the machinery of the ballot 
act. 4 A conspiracy to practice a fraud upon the electors, as the 
result of which three of the conspirators usurped the offices of 
inspectors and clerk of the election, opened the polls an hour 
before the time fixed by law, and received many votes from persons 
not registered, without administering the oath prescribed by law, 
was held to warrant the exclusion of the entire vote of the pre- 
cinct. 5 If a • modern charter of an ancient borough contain a 
clause expressly disqualifying certain persons from voting for cor- 
porate offices, but, at the same time, ratify and confirm the ancient 
usages of the corporation, by which certain other and different 
persons are disqualified from voting, at any nomination, or election, 

1 Le ■ Moyne v. Farwell, Smith, 406 ; 4 Woodward v. Sarsons, 44 L. J. C. P. 

Mann v. Cassidy, 1 Brewst. 11. 293. 

2 Finley v. Bisbee, 1 Ells. 74. 5 Finley v. Walls, Smith, 367. 

3 Mann v. Cassidy, 1 Brewst. 11. 



423 

of corporate officers, an election, to a corporate office, in pursu- 
ance of the words of the charter, but not in conformity with the 
ancient usages of the corporation, will be void. 1 Entire polls have 
been excluded because many citizens were deterred, by force, from 
voting ; also because the election officers fraudulently disobeyed 
the law, by allowing unassessed persons to vote, by receiving large 
numbers of fraudulent votes, by disregarding challenges, by receiv- 
ing challenged votes without proof, and by disregarding their duties 
generally. 2 

§ 501. If a discrepancy of twenty-seven votes, between the pre- 
cinct return and the check-list, were found to be the result of fraud 
in the managers of the election, the court would hesitate long to 
count any of the votes cast at an election so tainted, on the 
ground that, with such proof of fraudulent and corrupt purposes, 
no confidence could be entertained of coming to any reliable con- 
clusion, as to what votes were actually given. 3 Honest voters 
should not be disfranchised by a mere omission of officers of elec- 
tion to take the oath of office ; but, when gross frauds are proven, 
some of them of such a character as necessarily to complicate the 
officers of the election themselves, and the ballot-box becomes so 
tainted as to be wholly unreliable, it must be proved that the offi- 
cers were sworn before the votes can be counted. 4 A paper pur- 
porting to be a return of one precinct was, with the vote of that 
precinct, unanimously rejected, by the committee, for the follow- 
ing, amongst other, reasons : The election was held viva voce ; 
only two persons acted as judges, and neither of them was sworn ; 
only one person acted as clerk, and he was not sworn, and votes 
were excluded by the justices, whom the clerk took to his assist- 
ance, in making out the abstracts to be forwarded to the gov- 
ernor ; the abstracts were forwarded in an irregular manner ; and 
the paper, called a return, appeared, upon its face, to be defective 
in many important particulars. 5 A refusal of the judges of elec- 
tion to permit certain friends of the contestant to be present, 
while the votes were received, as required by law, is a good 
ground for the rejection of the return of the precinct. 6 In one 
county two of the three officers of. election were not magistrates, 

x Kex v. Abell, 3 Dowl. & Eyl. 390. 4 Blair v. Barrett, 1 Bart. 308. 

2 Thayer v. Greenback, 1 Brewst. 189. 5 Easton v. Scott, C. & H. 286. 

3 Judkius v. Hill, 50 N. H. 14=0. 6 Delano v. Morgan, 2 Bart. 168. 



424 

as the law required ; three non-residents of the county voted in 
violation of law ; and the number of votes cast exceeded the num- 
ber of voters by nine. In another county the legal return was 
suppressed, and a second pretended election held at night, and a 
false return made. The house declared the seat vacant. 1 

§ 502. Many irregularities, of frequent occurrence, involving the 
performance, or omission, of acts not touching the essential validity 
of the election, are held to be insufficient to justify the rejection 
of the poll, unless committed in violation of statutes mandatory 
in form. While the conduct of election officers may be marked by 
such gross negligence and disregard of official duty as to render their 
return unintelligible, or unworthy of credence, although actual fraud 
be not apparent, ordinarily mere neglect to comply with directory 
requirements of the law, or performance of duty in a mistaken 
manner, will not defeat the will of the people of an entire district, 
in the absence of fraud and of injurious results. 2 Our election 
laws must necessarily be administered by men who are not familiar 
with the construction of statutes ; and all that we have a right to 
expect is good faith, in their acts, and a substantial compliance 
with the requirements of the law. 3 The failure of the officers to 
perform a merely ministerial duty cannot invalidate an election, if 
the electors had actual notice, and there was no fraud, mistake, or 
surprise. 4 Looseness and irregularity in the conduct of an election 
will not in the absence of fraud render the election void. 5 A mere 

; Jackson v. Wayne, C. &^ H. 47. If spirit of the law of Pennsylvania, should 
the votes of the first county had been have been more careful of the rights of 
rejected, and the other votes counted, the opposition ; and the disregard of 
the contestee would have had a majority. challenges which, on account of the sin^ 
If the votes of the other county had been gular neglect of duty, shown by the 
rejected, and the rest counted, the con- assessor, constituted the only safeguard 
testee would, in like manner, have had a of the purity of the election, justified 
majority. Quaere : — Whether the house the rejection of the entire poll. Covode 
decided that the elections were (one or v. Foster, 2 Bart. 600. The house con- 
both) void. curred by a vote of 125 to 45. 

It was held, by a majority of the 3 Thompson v. Ewing, 1 Brewst. 67. 

committee, that the use of a paper, s Ingersoll v. Naylor, 1 Bart. 33 ; Sker- 

as an assessment list, which had no ret's case, 2 Pars. 509 ; Carpenter's case, 

claim to such authority, the mysterious id. 537 ; Tucker v. Commonwealth, 20 

disappearance of which rendered it im- Penn. St. 493 ; Stimson v. Boardman, 

possible to determine its character, or L. & It. 171. 

value ; the partiality of a board, which, 'Taylor v. Taylor, 10 Minn. 107. 

being composed wholly of members of 6 Breed's case, C. S. & J. 281. 
one political party, in disregard of the 



4:25 

irregularity, in conducting an election, which does not deprive a 
legal voter of his vote, or admit a disqualified voter to vote, or cast 
uncertainty on the result, and has not been occasioned by the 
agency of a party seeking to derive a benefit from it, should be 
overlooked, in a proceeding to try the right to an office depending 
on such election. 1 

§ 503. The laws of Kansas contained the following provision : 
" In all elections, for the choice of any officer, unless it is other- 
wise expressly provided, the person having the highest number of 
votes, for any office, shall be deemed to have been elected to that 
office ; and whenever it shall satisfactorily appear that any person 
has received the highest number of votes, for any office, such 
person shall receive the certificate of election, notwithstanding the 
provisions of law may not have been fully complied with, in notic- 
ing and conducting the election, so that the real will of the people 
may not be defeated by any informality of any officer." 2 At an 
election, held while this statute was in force, the polls were closed, 
at about noon, and remained closed for more than an hour, and, 
during this period, the officers of election separated for dinner. 
Two of the judges kept the ballot-box in sight during the time. 
Before the officers adjourned for dinner, and after their return, the 
ballot-box was opened, by one of the judges, in the presence of 
the other officers, for the purpose of ascertaining the number of 
the ballots therein. After the election was closed in the evening, 
and the poll-books properly made out and signed, both poll-books 
and all the ballots were handed to one of the judges of election, 
who was also the trustee of the township in which the election was 
held ; and it was his duty to deliver the ballots and one of the 
poll-books to the county clerk and to preserve the other poll-book 
in his office. Neither the poll-books nor ballots were put under 
cover, or sealed up, or directed to the county clerk, as the law 
required. They were all put into the ballot-box, open and loose, 
and, in that condition, handed to the township trustee. On the 
morning of the third day thereafter he lost them and they were 
never found. The county clerk never received the ballots, or either 
of the poll-books. It was held by the supreme court that, under 
the state law, the closing of the polls at noon, the opening of 
the ballot-box before and after noon, the failure of the officers to 

1 Russell v. State, 11 Kan. 308. 2 Gen. Stat. Kan. 411. 



426 

" put under cover one of the poll-books, seal the same and direct 
it to the county clerk," and to " envelope " the ballots and deliver 
them to the county clerk, the loss of the poll-books and of the 
ballots, and the failure to deliver any of them to the county clerk, 
or to preserve one of the poll-books in his office, were all irregu- 
larities ; but that, inasmuch as no illegal vote was polled, and no 
legal voter deprived of his vote, and the utmost good faith charac- 
terized the whole of the proceedings, " except possibly the loss of 
the poll-books and ballots," the irregularities did not vitiate the 
election, either in the township or in the county. 1 

§ 504. The statute contained the following provisions : " No 
irregularity, or malconduct, of any member, or officer, of a board 
of j udges, or canvassers, shall set aside the election of any person, 
unless such irregularity, or malconduct, was such as to cause the 
contestee to be declared elected when he had not received the 
highest number of legal votes ; nor shall any election be set aside, 
for illegal votes, unless the number thereof given to the contestee, 
if taken from him, would reduce the number of his legal votes 
below the number of legal votes given to some other person, for 
the same office." 3 "If it be proved that any person, other than 
the contestee, has the highest number of legal votes, such 
board shall declare such person elected and certify the same to 
the proper officer." 3 It was held that, whatever might be the 
grounds of contest alleged, the real question was who received 
the most votes, and that misconduct of an officer of the election, 
which did not affect the number of votes, was not a ground of 
contest. 4 At one of the polling stations of an election, held under 
the ballot act of 1872, the presiding officer placed each of the 
ballot papers, which he had marked by the direction of voters 
unable to read, in the ballot-box, wrapped up in the declaration of 
inability to read, made by the voter for whom the vote was marked, 
and such votes could have been, but were not in fact, identified 
at the counting. The presiding officer, at another polling station, 
marked, upon the face of every ballot paper which he gave out, 
the number of the voter appearing on the burgess-roll. These 
numbers could have been, but were not, seen at the counting. 
No voter was prevented from voting ; and these errors of the pre- 

1 Morris v. Vanlaningham, 11 Kan. 269. 3 Rev. Stat. Ind. G. & H. 319. 

2 Rev. Stat. Ind. G. & H. 318. 4 Dobyns v. Weaden, 50 Ind. 298. 



4:27 

siding officers did not affect the result of the election. It was held 
that the election was not void, either at common law, or under 
the ballot act. 1 The fact that one of the judges of election placed 
the ballot of a voter in his pocket, and not in the ballot-box, will 
not warrant the rejection of the entire vote of the precinct. 2 

§ 505. At an election, held in the state of Kansas, one of the 
clerks was not a resident of the precinct ; the judges and clerks 
were not councilmen, or officers chosen by the electors at the 
polls, as required by law. At noon there was an adjournment for 
dinner ; the polls were closed, and the ballot-box was taken in 
charge by one of the judges ; and again, at night, after the polls 
were closed, the ballot-box was taken in charge by one of the 
judges, before the canvass commenced. But the supreme court 
of the state held that these irregularities did not vitiate the elec- 
tion or the returns. 3 Where it appeared that the inspectors were 
not sworn, that the ballot-box was concealed from public view for 
half an hour at noon, that the polls were not opened until half- 
past nine o'clock, and were kept open after sunset, and that a 
United States marshal improperly interfered with the election 
and prevented several electors from voting, it was held that the 
irregularities might be sufficiently grave to vitiate the return, if 
fraud were shown ; but there being no proof of actual fraud, the 
committee, by a decided vote, declined to reject the return and 
proceeded to purge the poll of the illegal votes. 4 Without proof 
■ of fraud, the returns will not be rejected because they were made 
out by a candidate ; nor because votes were received from persons 
whose names were not on the list of voters, without noting the 
evidence or the reasons ; nor because strangers were admitted to the 
room ; nor because one of the officers of the election was intoxi- 
cated, provided his intoxication produced no effect upon the 
election ; nor because the officers were irregularly chosen ; nor 
because, in the absence of the regular officers of the election, the 
people present elected substitutes, without waiting for the expira- 
tion of the hour allowed by law for the appearance of the officers, 
there being no other irregularity and no opposition or fraud ; nor 
because a clerk, without authority, assumes the place of an absent 
inspector. 5 

1 Woodward v. Sarsons, 44 L. J. G. P. s Jones v. Caldwell, 21 Kan. 186. 
293. 4 Finley v. Walls, Smith, 367. 

2 Stovall v. Cabell, 2 Ells. 667. 5 Thompson v. Ewing, 1 Brewst. 67. 



428 

§ 506. It is an irregularity for the selectmen to overturn a ballot- 
box and break up a balloting, which had commenced, under a 
belief on their part that a person had voted twice ; but if this be 
done with the tacit assent of the electors, without any fraudulent 
purpose, and be acquiesced in by a vote not to dissolve the meet- 
ing, it will not invalidate an election subsequently effected. 1 Where 
the selectmen, in the honest belief that illegal votes had been 
received, overturned the ballot-box, and scattered the votes, and 
caused the balloting to be commenced anew, it was held that the 
irregularity did not avoid a balloting subsequently effected. 2 It 
was held by the committee of elections of the house of represent- 
atives that inasmuch as the territory of New Mexico had been but 
recently organized, and the people were not accustomed to the 
precision and accuracy of our election forms, and did not under- 
stand our language, or our system of laws, allowance might very 
properly be made for the want of strict compliance, in every minute 
particular, with the complex requirements of the territorial elec- 
tion laws, especially in the absence of proof that the election 
was fraudulently conducted, or that the returns were not made in 
the most perfect good faith. 3 Allegations that, in one precinct, 
more votes were cast for the petitioner than were counted, that, 
in another precinct, the ballot-box was not locked according to 
law, but only tied with red tape, and that, at a third precinct, the 
ballot-box was in the possession of a person who was not an 
inspector of the election, do not show corruption, or irregularities 
of sufficient magnitude, under the law of New York, to invalidate 
an election, or return. 4 In another state one election was held 
void, because of the want of proof that the successful candidate 
would have been chosen, if twenty electors, who lost their votes 
by a failure to open the polls, at one of the precincts, had, in fact, 
voted ; and another election was sustained notwithstanding the 
polls were not opened at one of the precincts, because it was not 
shown that the failure to vote at that precinct affected the result. 5 

§ 507. In the absence of fraud, it is not fatal to the validity of 
an election that the judges electioneered, or were absent from their 



1 Moody's case, C. S. & J. 456. 

a Taylor s case, id. 423. 

3 Lane v. Gallegos, 1 Bart. 164. 



Van Rensselaer v. Van Allen, C. tfc H. 



73. 



B Marshall v. Kerns, 2 Swan, 68 ; R.R. 
Co. v. Davidson County, 1 Sneed, 692. 



429 

posts, at different times during the day. 1 It was provided by 
statute as follows : " 1. It shall not be lawful for the judge of any 
court, the superintendent of public instruction, any superintendent 
of schools, the superintendent, manager, or any employe of any 
asylum, or state institution of learning, actively to induce, or pro- 
cure, either directly, or indirectly, or to attempt, either directly, or 
indirectly, to induce, or procure, any qualified elector to vote, in 
any election, for any particular candidate, or in favor of any par- 
ticular political party, or to vote against any particular candidate, 
or against any particular party. 2. It shall not be lawful for any 
. of the officers, or employes, mentioned in the foregoing section, to 
participate actively in politics ; and making political speeches, 
or the active, or official, participation in political meetings, shall 
be deemed to be an active participation in politics, within the 
meaning of this section." 3 The supreme court of Virginia held 
these statutory provisions to be void, because repugnant to the 
state constitution, which declares that "any citizen may speak, 
write, and publish his sentiments, on all subjects, being responsi- 
ble for the abuse of that liberty ;" 3 that all citizens " possess equal 
civil and political rights and public privileges ;" 4 and that "the 
general assembly shall not pass any law, abridging the freedom 
of speech or of the press." 5 

§ 508. Where one of the clerks of the election, in the afternoon 
of the day of election, became disabled by intoxication, and one 
of the candidates performed his duties, without being sworn, and 
the clerk, having recovered from his intoxication about three o'clock 
the next morning, signed the returns, but no fraud or bad faith 
was shown, the election was sustained. 6 

§ 509. An act of parliament required the appointment of a con- 
venient number of poll clerks, on the demand of a poll by any 
candidate, or by any two electors, 7 but did not require that the 
number first appointed should be continued throughout the election, 
if it should be found greater than convenience required. When 
it was found that the services of the three clerks originally 
appointed were not required, and two of them were dismissed, 

1 Wilson v. Peterson, 69 K 0. 113. 5 Const. Va. 1867, art. 5, s. 14. 

2 Stat. Va. 1883-4, ss. 1, 2. 6 Boileau's case, 2 Pars. 503. 

3 Const. Va. 1867, art. 1, s. 14. 7 11 Geo. 1, c. 18, s. 1. 

4 Id. s. 20. 



430 

without objection, the two clerks so dismissed having taken down 
only five votes, which were correctly transcribed to the poll-book of 
the remaining clerk, it was held, by the court of king's bench, that 
an objection to the election, based on these facts, was frivolous. 1 
If a presiding officer, who, by the constitution of the borough, is 
made an integral part of an elective assembly, depart from it, after 
the organization of the meeting and the commencement of the 
election, but before the completion of the election, an election, 
concluded after his departure will be void. 3 A statute requiring 
that certain officers shall preside, at an election, for the adop- 
tion, or rejection, of a proposed temperance by-law, is mandatory, 
and an election, hejd in the absence of such officers, is void. 3 
But where the judges, one at a time, left the polls, for dinner, 
and votes were received, in their absence, it was held by the 
house of representatives of the United States to be no suffi- 
cient ground for the rejection of the return, without proof of 
fraud. 4 In Pennsylvania the absence of a judge, during a portion 
of the day, will not invalidate an election. 5 And in Canada, 
where the statute declares that, " at such meeting, the mayor, or 
reeve, of the municipality in which the same is held, * shall 
preside," the absence of the reeve, during the second day of the 
election, will not be a fatal objection, if nothing be improperly 
done, or omitted, in consequence, and the result be not affected. 6 
In Massachusetts, where the law requires the presence of four duly 
qualified inspectors, at the precinct polls, and only two persons 
act, neither of them being duly qualified, their returns must be 
rejected. 7 

1 Rex v. Mayor, 9 B & C. 1. 4 Wright v. Fuller, 1 Bart. 152. 

2 Rex v. Buller, 8 East, 389 ; Rex. v. 5 Thompson v. Ewing, 1 Brewst. 67. 
Williams, 2 M. & S. 141. 6 Malone's case, 41 U. C. Q. B. 159. 

3 Hartley's case, 25 U. C. Q. B. 12. 7 Yeates v. Martin, 1 Ells. 384. 



CHAPTER XXIII. 

PROCEEDINGS— Continued. 





Secs. 




Secs. 


1. Admission of illegal votes . 


510-513 


3. Closing polls 


. 520-524 


2. Exclusion of legal votes 


514-519 







§ 510. The vote of an elector may be lost to him, as the result 
of the admission of illegal ballots, as well as by the forcible or 
unlawful exclusion of legal ballots. 1 When illegal votes are 
received and canvassed for the successful candidate, and the votes 
so illegally received are sufficient in number to change the result, 
the election is void. 2 But the return cannot be set aside, or the 
result of the election avoided, by proof that votes were cast by 
persons not entitled to vote, unless it be shown either that the offi- 
cers, in receiving such votes, acted dishonestly, or collusively, or 
that the votes were cast for the petitioners, and that the rejection 
of them would have changed the result. 3 The rule is well settled 
that the whole vote of a precinct should not be thrown out, on 
account of illegal votes, if it be practicable to ascertain the number 
of the illegal votes, and the candidate, for whom they were cast, in 
order to reject them and leave the legal votes to be counted. 
Legal votes are not to be thrown out, in order to exclude illegal 
votes, unless necessity requires it, as the only means of preventing 
the consummation of a fraud upon the ballot-box. 4 When the 
vote of an unregistered person is received, by the judges of elec- 
tion, without challenge, or objection, it will be presumed, in the 
absence of proof to the contrary, that he was a legal voter. 5 An 
election, effected by illegal votes, is not confirmed by a subsequent 
refusal of the town meeting to reconsider the choice. 6 Where on 
appeal, in a contested election case, the record shows that certain 
illegal votes were counted, in the court below, for one of the 
parties, but does not show how many votes were found for either 

1 Batturs v. Megory, 1 Brewst. 162. S. & J. 261 ; Darling's case, id. 295 ; 

2 Field's case, C. S. & J. 144. Blake's case, id. 583. 

3 Barr's case, L. & R. 254; Trustees v. 4 Barnes v. Adams, 2 Bart. 760. 

Gibbs, 2 Cush. 39 ; Dickinson's case, C. 5 Kuykindall ©. Harker, 89 111. 126. 

6 Kellogg's case, C. S. & J. 71. 
431 



4:32 

candidate, the appellate court will hold the error to have been 
injurious to the other party. 1 ! 

§ 511. The names of the persons who were registered, and 
of those who voted, in the county, were preserved of record, and 
also the ballots cast, the latter being so marked that the ballot of 
each voter could be identified ; and these ballots were actually 
produced, upon the examination in the case, and the names of all 
the persons who voted for the sitting member, in the county, were 
thereby ascertained. The committee of elections of the house of 
representatives of the United States, held that if the sitting mem- 
ber believed that persons were registered and voted, in that 
county, who were not entitled to vote, under the constitution and 
laws of Missouri, he should have established this fact, and at the 
same time purged the poll, by showing such disqualification, in 
each individual case, by the voter's own oath, or other adequate 
proof, and then showing for whom he voted, so that the house 
could make the proper deductions in deciding the case. The sit- 
ting member, not having attempted to do this, has not a right to 
ask the house to reject their votes, upon secondary and less sat- 
isfactory proof. 2 The mere assertion, by a witness, that a voter 
was, or w T as not, a resident, without a statement of facts to justify 
the opinion, is not sufficient to exclude his vote. Evidence may 
be sufficient to put the voter to his explanation, if challenged at 
the polls, and yet not sufficient to prove a vote illegal, after it has 
been admitted. 3 

§ 512. Where it was proved that many unregistered persons 
were permitted to vote, without taking the oath prescribed by law, 
that one of the inspectors was not sworn, that the ballot-box was 
left unsealed during the adjournment for dinner, that the key of 
the ballot-box was left with an unofficial person, who was a par- 
tizan friend of the contestee, and that the ballot-box, instead of 
being sent to the clerk of the circuit court sealed, by an inspector 
or clerk of the election, was sent unsealed, by the person with 
whom the key was left, the committee, while denouncing these 
irregularities, as violations of statutory provisions, made to secure 
a fair election, calculated to throw great discredit upon the pre- 

1 Griffin v. Wall, 32 Ala. 149. testant, but the house awarded the seat 

2 Switzler v. Dyer, 2 Bart. 777. The to the contestee, by a vote of 108 to 55. 
committee reported in favor of the con- 3 Gooding v. Wilson, Smith, 79. 



433 

cinct return, declined, by a decided vote, to exclude the return, 
and proceeded to purge the poll. 1 

§ 513. Where illegal votes have been cast the true rule is to 
purge the poll, by first proving for whom they were cast, and thus 
ascertain the real vote ; but, if this cannot be done, then to 
exclude the poll altogether. This is safer than the rule which 
arbitrarily apportions the fraud among the parties. 2 But in a con- 
test for a seat in the forty-fifth congress, the committee of elections 
said : " In purging the polls of illegal votes, the general rule is 
that, unless it is shown for which candidate they were cast, they 
are to be deducted from the whole vote of the election division, 
and not from the candidates having the highest number. Of 
course, in the application of this rule, such illegal votes would be 
deducted, proportionately, from both candidates, according to the 
entire vote returned for each." 3 



1 Finley v. Walls, Smith, 367. 

-Curtin v. Yocum, 1 Ells. 416. 

3 Finley v. Walls, Smith, 367. See also 
McDaniel's case, 3 Penn. L. J. 310; 
Shepherd v. Gibbons, 2 Brewst. 128 ; 
Duffey's case, 4 id. 531. 

The party who demands the exclusion 
of votes, actually cast and canvassed 
for his opponent, on the ground of their 
illegality, must show, not only that 
illegal votes were cast, but also that they 
were canvassed for his competitor. If 
they were canvassed for the party mak- 
ing the demand, they are not to be 
subtracted from the vote of his oppo- 
nent, upon mere proof of their illegality. 
That would be double robbery. 

And yet that is a possible, not to say 
probable, result of the rule to permit a 
party to make mere proof of the illegality 
of votes cast, and stop there, without 
showing for whom they were cast, or 
canvassed, and demand the apportion- 
ment of the fraud among the candidates. 
The chances are at least equal that the 
party making the demand, and failing to 
make the proper proof, will, by such an 
apportionment, not only secure a part of 
the illegal votes cast and canvassed for 
himself, but will also cause an equal num- 

28 



ber of illegal votes, cast and canvassed for 
himself, to be subtracted from the poll 
of his competitor. 

If the proofs show that persons voted, 
who were not qualified voters, but do 
not show for whom they voted, the ille- 
gality will, as we have seen, be disre- 
garded, when such votes are not suffi- 
cient, in number, to affect the result of 
the election. But when such illegal votes 
are sufficient, in number, to affect the re- 
sult, the case may be one of great practi- 
cal difficulty. Four distinct courses will 
be open to the court, or tribunal, charged 
with its determination : (1) to reject the 
entire poll, (2) to disregard the illegality, 
(3) to make a pro rata reduction of the 
vote of each candidate, and (4) to take 
all the illegal votes from one candidate. 

The adoption of the first course, as an 
inflexible rule, would secure to the mi- 
nority an easy method of destroying a 
close election. The adoption of the 
second would secure an equally easy 
method of carrying a close election. The 
adoption of either of the other causes 
would be a purely arbitrary act ; and 
the result would be, not established by 
the facts, but fabricated by the court ; 
and it would, at the same time, enable 



434 

§ 514. The enforcement, by the officers of election, of an erro- 
neous rule respecting the qualifications of electors, which excludes 
the votes of certain legal voters, who offer to vote, and prevents 
other legal voters similarly situated from offering to vote, may be 
a sufficient ground for setting aside the election. 1 Where a mem- 
ber of the house of representatives of Massachusetts was returned, 
as elected by a majority of one vote, and it appeared that several 
persons, legally qualified, who were present and desired to vote at 
the election, were prohibited by the selectmen, the election was 
held void, although it did not appear that more than one of the 
rejected voters would have voted against the sitting member, if 
permitted to vote. 3 But the election return cannot be set aside, 
or the declared result of the election avoided, by proof that quali- 
fied electors were denied the right to vote, unless it be shown that 
the officers of election acted dishonestly, or collusively, or be 
proved that such votes would have been cast against the returned 
member. 3 And, in order to entitle a rejected vote to be counted, 
the voter must attend the meeting, and tender his ballot, where the 
election takes place ; and it is not sufficient that the voter's name 
is not on the list of voters, and that, in consequence of that, he 
fails to attend the meeting ; or that he tenders his vote, and is 
refused, at any other balloting. 4 If the rejection of legal votes 
do not affect the result, the election will not be set aside. 5 Under 

the minority to carry the election, by a the duty of the court would seem to be 
dexterous adjustment of the illegal vote to choose, as wisely as possible, between 
to the real majority. For illustration, a disregard of the illegality and a rejec- 
if one candidate should receive 220 legal tion of the entire precinct vote. There 
votes and no illegal votes, but the other ought to be no arbitrary presumption of 
should receive 210 legal votes and 20 law, either that all the illegal votes were 
illegal votes, the legal majority of the cast by the political party in the major- 
first candidate would be ten votes. But ity, or that they were cast by different 
the apportionment of the 20 illegal parties in proportion to their numbers, 
votes, between the two candidates, would To take the illegal votes all from one 
secure to the second candidate a ficti- candidate, or p?'o rata from several cau- 
tious majority of not less than ten votes. didates, would be, not to decide, but to 
Again, if the aggregate majority of a make a case for the parties, 
candidate, in the district, the illegal ' Scranton case, Brightly's Elect. Cas. 
votes being excluded, amount to twenty, 455. 

and the illegal votes, twenty-one in num- 2 Hobbs' case, C. S. & J. 67 ; Baker v. 

ber, be all taken from him the will of Hunt, L. & R. 378. 

the majority may be defeated. 3 Barr's case, L. & R. 254. 

In the total absence of proof tending 4 Howe's case,C. S. & J. 459. 

to show for whom illegal votes, sufficient 5 Mawby's case, 3 El. & Bl. 718. 
in number to affect the result, were cast, 



435 

statutes providing that " no officer, clerk, agent, or other person, 
shall communicate, at any time, to any person, any information, 
obtained at a polling place, as to the candidate for whom any 
voter, at a polling place, is about to vote, or has voted," 1 and that 
" no person, who has voted, at an election, shall, in any legal pro- 
ceeding, to question the election or return, be required to state for 
whom he has voted," 3 the election will not be set aside, at the 
instance of the unsuccessful candidate, because ballots of electors, 
who would have voted for the returned candidate, were unlawfully 
rejected. 3 If some of the votes given in at an election be not 
taken from the envelopes or counted, the validity of the election 
will not be thereby affected if it be shown, or admitted, that the 
member elected received a majority of all the votes. 4 

§ 515. The state constitution contained the following provision : 
" In all elections, every white male citizen, above the age of twenty- 
one years, having resided in the state one year next preceding any 
election, shall be entitled to vote at such election ; and every white 
male inhabitant, of the ■ age aforesaid, who may be a resident of 
the state, at the time of the adoption of this constitution, shall 
have the right of voting as aforesaid ; but no such citizen or 
inhabitant shall be entitled to vote except in the district, or county, 
in which he shall actually reside, at the time of such election." 5 
It was held that, although statutes requiring thirty days' or six 
months' residence, as an additional qualification, might be uncon- 
stitutional and void, the mere fact that certain persons, who were 
entitled to vote under the constitution, were deprived of their right, 
at an election held under such statutes, did not render the election 
void. 6 The fact that the petitioner received, in one of the towns 
of the district, more votes than were canvassed for him, would not, 
under the law of New York, be a sufficient ground for the exclusion 
of the vote of the town. 7 

§ 516. It has been held, in some of the states, that legal votes, duly 
offered, at the polls, but not actually deposited in the ballot-box, 
cannot be counted. In New Yorji the result of the election must 

1 Stat. Can. 37 Vict. c. 9, s. 72, sub-s. 3. . 5 Const. HI. 1848, art. 6, s. 1. 

2 Id. s. 77. 6 Supervisors 0. Davis, 63 111. 405. 

3 North Victoria Election, 37 U. C. Q. 7 Van Rensselaer v. Van Allen, C. & H 
B. 234. 74. 

4 Henry's case, C. S. & J. 664. 



436 

be determined by the votes cast. If illegal votes can be ascertained 
they may be rejected; but votes not received can never be made 
available in favor of either party. 1 The supreme court of Cali- 
fornia has held that it was error to count, for a contestant, votes 
which were not in fact cast, under the pretence that the electors 
would have voted for him, if allowed to vote ; that, in contested 
election cases, the question was which candidate received the 
highest number of votes ; and that the idea that votes of persons 
who did not vote could be counted was preposterous. 2 When a 
vote is improperly rejected by the officers of election, in Alabama, 
the tribunal, before which the election is contested, has no power 
to count the vote, as cast for the candidate for whom the elector 
intended to vote. If the improper refusal to permit the vote to 
be cast changed the result, the election should be declared void. 3 
In a contest for a seat in the nineteenth congress the committee 
of elections held that votes not actually cast could not be counted. 4 
§ 517. But it is now an established rule of the house of represent- 
atives of the United States that a vote, duly offered and unlawfully 
rejected, at the polls, will be counted in a contest. 5 In England 
if the sheriff should wrongfully reject a vote regularly tendered, 
and there should be a petition against the election, such vote would 
not be lost, but would be added to the poll, as if taken when 
tendered. 6 The constitution of Arkansas has the following pro- 
vision : "If the officers of any election shall unlawfully refuse, or 
fail, to receive, count, or return, the vote, or ballot, of any quali- 
fied elector, such vote, or ballot, shall nevertheless be counted 
upon the trial of any contest arising out of said election." 7 It 
was held that this provision of the constitution required all legal 
votes cast, or offered, whether returned, or not returned, to be 
counted, in a contest, whatever irregularities might have attended 
the election. 8 Where a qualified elector offers to vote for a par- 
ticular candidate, and uses due diligence in endeavoring to do so, 

^artto. Harvey, 19 How. Pr. 245. Porterfield v. McCoy, C. & H. 267; 

2 Webster v. Byrnes, 34 Cal. 273. Niblack v. Walls, Smith, 101 ; Buchan- 

3 State v. Judge, 13 Ala. 805. an v. Manning, 2 Ells. 287; Bell v. 
4 Biddle v. Wing, C. & H. 504. Snyder, Smith, 247. 

5 Sessinghaus v. Frost, 2 Ells. 380; 6 Hey wood (5 ed.), 500. 

Frost v. Metcalf, 1 id. 289 ; Bisbee v. 7 Const. Ark. art. 4, s. 11. 

Finley, 2 id. 172 ; Covode v. Foster, 2 8 Govan v. Jackson, 32 Ark. 553. 
Bart. 600 ; Taylor v. Reading, id. 661 ; 



437 

and is prevented by fraud, violence, or intimidation, from deposit- 
ing his ballot, his vote should be counted. The offer to vote is 
equivalent to voting. 1 An unlawful refusal, on the part of the 
officers of registration, to register a qualified elector, is a good 
ground for a contest ; but, in order to make it available, the proof 
should clearly show the name of the elector who offered to register, 
the fact that he was a qualified elector, and the reason why the 
officer refused to register him ; and, under the statutes of the 
United States, if he offered to do all that was necessary to entitle 
him to registration, and was refused, and afterwards presented 
himself at the proper voting place, and offered to vote, and again 
offered to perform everything required of him under the law, and 
his vote was still refused, it would be the duty of the house to 
count his vote. 2 But it must be shown for whom the qualified 
elector intended and offered to vote. 3 

§ 518. In a case decided by the house of representatives of the 
United States, in the forty-second congress, the committee of elec- 
tions reported the rule to be " well settled that, when a legal voter 
offers to vote for a particular candidate, and uses due diligence in 
endeavoring to do so, and is prevented by fraud, violence, or 
intimidation, from depositing his ballot, his vote should be counted." 
The report of the committee was adopted, and the votes in ques- 
tion counted by the house. 4 This might be the only adequate 
remedy for such a wrong. For, while it might meet the ends of 
justice to set aside the election altogether, in those precincts in 

^iblack v. Walls, Smith, 101. votes that were actually given, but that 

2 Buchanan v. Manning, 2 Ells. 287. ne would have received the greatest 

o-c , ti«- , 14 . -, •■, ooo t>„ r number of votes, had not his friends, at 

^ Frost v. Metcalf, 1 id. 289; Rev. ^ election holden at the city of Detroit, 

Stat. U. S. s. 2007. been intimidated from voting, by reason 

4 Niblack v. Walls, Smith, 101 ; Bell of the interference of deputy sheriffs 

v. Snyder, id. 247; Covode v. Foster, and constables, who, it is alleged, under 

2 Bart. 600; Taylor v. Beading, id. the pretenceof keeping the peace, struck 

' J °' several persons on the head, and, by that 

661 ; Porterfield v. McCoy, C. & H. 267. mea ns, prevented them,andmany others, 

In the case of Biddle and Richard v. from voting for Mr. Richard. The com- 

Wing, C. & H. 504, the committee of mittee are of opinion that the duty as- 

, . .-, signed to them does not impose on them 

elections said : an examination of the cause s, which may 

" Mr. Richard rests his claim to the have prevented any candidate from 

seat on the grounds which to the com- getting a sufficient number of votes to 

mittee appear entirely novel, and as entitle him to a seat. They consider 

they do not at all interfere with any of that it is only required of them to ascer- 

the matters in controversy between the tain who had the greatest number of 

other candidates, they will be first ex- legal votes actually given at the elec- 

amined. He does not pretend that he tion." 
has received the greatest number of 



438 

which such wrongs are perpetrated, in all cases where that course 
would restore the majority to the candidate who had been deprived 
of it by the loss of the rejected votes, it would, evidently, be no 
remedy, but rather an aggravation of the wrong, to set aside the 
elections in the precincts in question, if the candidate, in whose 
favor the rejected votes were offered, had, notwithstanding their 
rejection, received a majority in those precincts, but, at the same 
time, his aggregate majority, in the entire district, had been trans- 
formed into a minority, by the loss of the rejected votes. 

§ 519. The foundations of this rule are strengthened by the 
provisions of sections 2007, 2008, 2010, of the revised statutes of 
the United States. x The constitutional authority for the enactment 
of most of the provisions of these sections is to be found in the 
fifteenth article of the amendments of the constitution of the United 
States ; but a part of it is authorized by that clause of the consti- 



1 The following are the statutory pro 
visions : 

Sec. 2007. Whenever, under the au- 
thority of the constitution, or laws, of 
any state, or the laws of any territory, 
any act is required to be done, by a citi- 
zen, as a prerequisite to qualify, or en- 
title, him to vote, the offer of such citizen 
to perform the act required to be done, 
shall, if it fail to be carried into execu- 
tion, by reason of the wrongful act, or 
omission, of the person, or officer, charged 
with the duty of receiving, or permit- 
ting, such performance, or offer to per- 
form, or acting thereon, be deemed and 
held as a performance in law of such act ; 
and the person so offering and failing to 
vote, and being otherwise qualified, shall 
be entitled to vote, in the same manner 
and to the same extent, as if he had in 
fact performed such act. 

Sec. 2008. Every judge, inspector, or 
other officer of election, whose duty it 
is, to receive, count, certify, register, re- 
port, or give effect to, the vote of such 
citizen, who wrongfully refuses, or 
omits, to receive, count, certify, register, 
report, or give effect to, the vote of such 
citizen, upon the presentation by him of 
his affidavit, stating such offer, and the 
time and place thereof, and the name of 
the officer or person whose duty it was 
to act thereon, and that he was wrong- 
fully prevented by such person, or offi- 
cer, from performing such act, shall for- 
feit the sum of five hundred dollars, to the 



party aggrieved by such refusal or omis- 
sion, to be recovered by an action on the 
case, with costs and such allowance for 
counsel fees as the court may deem just. 
Sec. 2010. Whenever any person, is de- 
feated or deprived of his election to any 
office, except elector of president or 
vice-president, representative, or dele- 
gate, in congress, or member of a state 
legislature, by reason of the denial to 
any citizen, who may offer to vote, of the 
right to vote, on account of race, color, 
or previous condition of servitude, his 
right to hold and enjoy such office, and 
the emoluments thereof, shall not be im- 
paired by such denial ; and the person 
so defeated or deprived may bring any 
appropriate suit, or proceeding, to re- 
cover possession of such office ; and, in 
cases where it appears that the sole ques- 
tion touching the title to such office, 
arises out of the denial of the right to 
vote to citizens who so offer to vote, on 
account of race, color, or previous con- 
dition of servitude, such suit, or proceed- 
ing, may be instituted in the circuit, or 
district, court of the United States, of 
the circuit, or district, in which such 
person resides. And the circuit, or dis- 
trict, court shall have, concurrently with 
the state courts, jurisdiction thereof, so 
far as to determine the rights of the 
parties to such office, by reason of the 
denial of the right guarantied by the 
fifteenth article of amendment to the 
constitution of the United States, and 
secured herein. 



439 

tution which empowers congress to regulate the times, places, and 
manner of holding elections of representatives, in the several states. 
It is provided, in section 2007, that the offer to perform any act 
required by state laws, or constitutions, to qualify, or entitle, the 
citizen to vote, shall be, in law, the performance of such act. If 
this be not sufficiently broad and clear to amount to an express 
statutory provision that the offer to vote, at congressional elections 
shall be tantamount to the act of voting, it is manifestly efficacious 
to fortify the position taken, by the house, in the forty-second 
congress. So far as the congressional election is concerned, this 
provision is of constitutional validity, in its application to all per- 
sons, in all cases ; for congress has the right to regulate the manner 
of choosing representatives, as well by provisions which have no 
relation to the fifteenth article of the amendments of the federal 
constitution, as by provisions which tend to the enforcement of 
that article. And as to elections of state officers the provision is 
of constitutional validity, in all cases involving the enforcement 
of the fifteenth amendment. But, as to elections of state officers, 
it is of no validity in cases not involving the enforcement of this 
amendment. That is to say, so far as congressional elections are 
concerned, the offer, by a voter, otherwise legally qualified, to per- 
form any act, which is a prerequisite to voting, will be, in law 
a performance of the act. This rests on the constitutional pro- 
vision authorizing congress to regulate congressional elections. 
At elections of state officers the offer to perform any such act, by 
a person who is, at such election, denied the right to vote on 
account of race, color, or previous condition of servitude, will 
be, in law, a performance of the act. This is authorized by the 
fifteenth amendment. But the offer to perform such acts, at state 
elections, by persons not denied the right to vote on account of 
race, color, or previous condition of servitude, is not, by this 
statute, made tantamount to the performance of such acts ; for no 
such legislation is warranted by any provision of the federal con- 
stitution. This statute does not provide that candidates for the 
house of representatives of the United States, who would have 
received majorities of all the votes cast, but for the rejection of 
the ballots of certain qualified electors, shall be admitted to the 
house. Congress cannot, by statute, dictate to the house in that 
way. Nor does this statute provide that candidates for state 



44:0 

legislatures shall be admitted, under like circumstances. Obviously 
congress cannot so invade the prerogatives of the respective houses 
of the state legislatures. But the statute does provide that can- 
didates for other offices, existing under state authority, shall be 
put in possession by the courts, when defeated by a denial of the 
right to vote on account of race, color, or previous condition of 
servitude. 

§ 520. A statutory requirement that the polls shall be closed at 
a designated time is directory. 1 But in Oregon, after the hour 
fixed by law for closing the polls, they cannot be kept open or 
reopened. 3 In Massachusetts the admission of votes, after the 
formal close of the poll, will not invalidate the election, if they do 
not change the result. 3 In the absence of valid regulations, pre- 
scribing the time for closing the polls, reasonable notice must be 
given, in Massachusetts, in accordance with previous usage. 4 If, 
after closing the poll, objection be made that it has not been kept 
open two hours, as required by law, and persons claim the right to 
vote, the poll may be opened again, by a vote of the town for the 
purpose. 5 An election, held, in England, under the municipal 
corporations act, 6 and the ballot act, 7 was declared void, on the 
ground that votes were received after four o'clock p. m., although 
the outer door of the house in which the election was held was 
closed, at the proper hour, and no votes were afterwards received, 
except from electors, who were inside before the door was closed. 8 

§ 521. The fact that the polls are kept open until after sunset 
is not sufficient, of itself, in the absence of fraud, to invalidate the 
election. 9 The fact that a town meeting was warned for three 
o'clock in the afternoon, and the poll was closed in less than two 
hours, did not, in the absence of fraud, invalidate the election. 10 
Where a meeting, for the choice of representatives in the legisla- 
ture of Massachusetts, was opened at half-past twelve, and closed 
at three p. m. in a town entitled to but one representative, it was 
held that the poll was not unreasonably closed. 11 If it appear, 

1 Swepston v. Barton, 39 Ark. 549 ; 6 3 & 4 Vict. c. 108. 
Holland v. Davis, 36 id. 446. , 7 35 & 36 Vict. c. 33. 

2 Darragh v. Bird, 3 Oregon, 229. 8 Gribbin v. Kirker, 7 Ir. K. C. L. 30. 
3 Cook's case, C. S. & J. 262; Gar- "Cole's case, C. S. & J. 391. 

field's case, id. 266. 10 Wheelock's case, id. 401. 

4 Parrott's case, id. 207. 1J Garfield's case, id. 266. 

6 Spencer's case, id. 507. 



441 

from the evidence, that the poll was closed, before the close of the 
meeting, it may be inferred, in the absence of proof to the con- 
trary, that it was legally closed by a vote of the town. 1 A vote 
to dissolve the warrant, made in accordance with the usage of the 
town, is equivalent to a vote to dissolve the meeting. 2 Where 
a meeting, for the choice of representatives, which was fully at- 
tended, refused, at a late hour, to dissolve, but proceeded to ballot 
again, and the selectmen, after the lapse of from twenty to thirty 
minutes, closed the poll, just before sunset, it was held that the 
conduct of the selectmen, in thus closing the poll, furnished no 
evidence of intention, on their part, to prevent electors from 
voting. 3 

§ 522. An objection that there was a failure to comply with the 
provision of the military election law, which required the polls 
to remain open at least three hours, without proof that fraud was 
practiced, or voters were deprived of an opportunity to vote, was 
held to be frivolous. 4 Where a meeting, for the choice of a rep- 
resentative to the legislature of Massachusetts, in a town entitled 
to one member, was opened punctually at the time fixed in the 
warrant, and the poll was kept open from twelve to twenty min- 
utes, and until all persons present, having a right to vote, and 
desirous of doing so, had voted, it was held that the poll was not 
unreasonably closed, although several persons, who had remained 
outside of the place of meeting, in the expectation that the poll 
would be opened later, according to usage, were prevented from 
voting. 5 When the general election laws of a state empower the 
judges of election to keep the polls open, until twelve o'clock at 
night, it is competent for the common council of a city, in the 
exercise of their statutory authority to regulate elections of the 
city, to make it compulsory for the judges, in the case of a char- 
ter election, to hold the polls open until that hour. 6 When 
the law directs that the polls shall be closed at five o'clock, and 
the question whether they were closed at that hour is in issue, the 
irregularity will not be fatal, unless it shall be shown that, after 
that hour, votes were cast which changed the result. 7 



freeman's case, C. S. & J. 543. 

2 Mendon case, id. 558. 

3 Moody's case, id. 456. 
4 Koontz v. Coffroth, 2 Bart. 138. 



5 White's case, G. S. & J. 269. 

6 Supervisors v. Davis, 63 111. 405. 

7 Piatt v. People, 29 id. 54. 



442 

§ 523. In Massachusetts, an election, at which the poll is not 
kept open two hours, is void. 1 Under the statute of Massachu- 
setts, an election, made at a second balloting, at which the poll 
is kept open after sunset, is void. 3 Where the usage had been 
to close the poll at four o'clock p. m. on the day of the election, 
and the selectmen gave notice, after counting the votes cast, at 
about twelve o'clock, that the poll would close at half-past twelve, 
and, after refusing to put a motion duly seconded, to keep it open 
until four o'clock, did, in fact, close it at a quarter-past one, and 
it appeared that this was done in accordance with the previous 
determination of the selectmen, expressed, before the meeting, 
to members of the political party to which they, as well as the 
member returned, belonged, and to no others, it was held that 
the election was void. 3 An election, which takes place after a 
vote that the town meeting be dissolved, and a declaration thereof 
made to the meeting, by the presiding officer, is void. 4 At a meet- 
ing for the election of representative, held on the fourth Monday 
of November, the selectmen refused to put a motion, properly 
made and seconded, to dissolve the meeting, but proceeded to 
call for and receive votes for a representative. It was held that 
an election so effected was void. 5 Where a meeting of the electors 
of a sub-district, for the choice of school directors, was convened 
at three o'clock in the afternoon, and the polls were kept open 
only forty minutes, and votes offered a few minutes later refused, 
the proceedings were held to be invalid. 6 

§ 524. It was provided by law as follows : " Sec. 2. Meetings, 
for the election of national, state, district, and county officers, may 
be opened as early as nine o'clock in the forenoon, and shall be 
opened as early as two o'clock in the afternoon.'" 7 " Sec. 3. Such 
meetings in towns shall be called by the selectmen, in the manner 
ordered by the towns, and in cities according to the provisions of 
the acts establishing them, and the acts in addition thereto ; and 
the warrant for notifying such meetings shall specify the time when 
the polls, for the choice of the several officers, shall be opened ; 
and the same shall be kept open at least two hours, and in towns 



1 Lathrop's case, G. S. & J. 501. 

2 Bourne's case, id. 523. 

3 Parrott's case, id. 207. 

4 Ilsley's case, id. 474. 



5 Webb's case, C. S. & J. 665. 
fi State v. Wollem, 37 Iowa, 130. 
7 Gen. Stat. Mass. c. 7, s. 2. 



44:3 

for such longer time as a majority of the voters present shall by 
vote direct ; but in no case shall the polls be kept open after the 
hour of sunset." 1 It was held that the prohibition against keep- 
ing the polls open after sunset was not applicable to elections held 
for the choice of town officers. 2 

1 Gen. Stat. Mass. c. 7, s. 3. 2 Conlin v. Aldrich, 98 Mass. 557. 



CHAPTER XXIV. 



PRECINCT CANVASS. 



Secs. 

1. Constitution of board . . 525 

2. Time and place of canvass . 526 

3. Preliminary duties of canvassers, 527 

4. Manner of canvass. 

(1) Form, substance, and requi- 

sites of ballots, and ballot 
papers .... 528 

(2) Marked ballots . . 529-534 

(3) Numbered ballots . . 535 

(4) Ballots folded together, 536, 537 

(5) Ballots with initials only of 

christian names . . 538-540 

(6) Ballots without christian 

names, or with erroneous 
christian names . . . 541 

(7) Ballots with abbreviated 

christian names . . 542, 543 

(8) Ballots without affix "Junior," 544 

(9) Ballots with erroneous mid- 

dle names, or without mid- 
dle names .... 545 
(10) Ballots defective in heading, 

or otherwise . . 546-548 



Secs. 

(11) Ballots with names not 

spelled like those of candi- 
dates, but idem sonantia . 549 

(12) Ambiguous ballots . 550, 551 

(13) Ballots with too many can- 

didates named . . 552-554 

(14) Ballots not containing names 

of residents of different 
counties .... 555 

(15) Ballots for ineligible candi- 

dates . . . 556-560 

(16) Ballots in wrong ballot-box, 561 

(17) Interlineations, erasures, and 

"pasters" . . .562 

(18) Ballots consisting of several 

pieces of paper . . 563 

(19) Ballots designed to deceive 

voters .... 564 

(20) Ballots without designations 

of terms of office . . 565 

(21) Ballots on which names, in- 

correctly registered, are 
printed as registered . 566 

(22) Ballots in wrong envelopes, 567 



§ 525. In the United States the constitution of the board of pre- 
cinct canvassers is generally fixed by statute. The judges or 
inspectors of the election, who receive the ballots, usually canvass 
them, assisted by the clerks of the election. In the absence of 
statutory provisions to the contrary, a majority constitutes a 
quorum, and the concurrence of a majority of the quorum deter- 
mines the action of the board. The duties of these officers, when 
acting as precinct canvassers, are, like those of county, district, and 
state canvassers, always ministerial, in the absence of statutory, or 
constitutional, provision, conferring upon them judicial powers. 
A statute, declaring that " the selectmen and town clerk shall assist 
in sorting and counting said votes ; but no other person shall, in 



444 



44:5 

any manner, interfere therewith," 1 is directory merely ; their failure 
to act will not invalidate the election. 2 In England no scrutiny 
can be allowed by, or before, any returning officer. 3 Although 
the assumption, of the board of canvassers, of the power to super- 
vise and control the returns of the inspectors is illegal, that 
illegality cannot deprive the sitting member of the seat, if he was 
actually elected. 4 A change in the office of mayor of London, 
during the interval between the election of an alderman and the 
canvass of the vote, does not invalidate the election. 5 When the 
office of deputy auditor is recognized by law he may lawfully act 
as canvasser, in the absence of the auditor. 6 

§ 526. The time and place for the precinct canvass is usually 
fixed by statute. In the absence of statutory provision to that 
effect, the failure to commence, or complete, the canvass within the 
precise time, or in the room, or building, designated by law, will 
not, of itself, render the canvass void. A statute requiring a ward 
canvass to be completed, " on the day subsequent to the closing of 
the polls, or sooner," 7 is directory ; and a delay of one day will not 
invalidate the return. 8 The fact that the county canvass was 
made at the office of the town clerk, and not at the town-house, 
as required by the order of the county commissioners, made 
in pursuance of the statute, if it do not affect the result, will 
not invalidate the return. 9 In England, as soon as practicable, 
after the close of the poll, the returning officer must commence 
counting the votes, 1 ° at a time and place to be designated by him- 
self, having given notice to the agents of the candidates, to enable 
them to be present. 1 1 Their absence will not delay the canvass. * 2 
The counting of the votes is to be completed as soon as practicable, 
after the close of the poll. 13 Only the returning officer, his 
assistants and clerks, and the agents of the candidates, may be 
present, without the sanction of the returning officer, at the 
counting of the votes. x 4 The counting is to go on continuously, 
time for refreshments being allowed, and the hours between seven 

a Gen. Stat. N. H. 1867, c. 28, s. 12. 8 Heath's case, 3 Hill, 42. 

2 Hill v. Goodwin, 56 N. H. 441. 9 Tobey v. King, L. &. K. 60. 

3 6 & 7 Vict. c. 18, s. 82. 10 35 and 36 Vict. c. 33, rule 32. 

4 Biddle v. Wing, C. & H. 504. " Id. rule 51. 

5 Rex v. Mayor, 9 B. & C. 1. 12 Id. rule 55. 

6 Crowell v. Lambert, 10 Minn. 369. 13 35 and 36 Vict. c. 33, rule 32. 

7 2 R. L. N. Y. 1813, p. 348, s. 11. 14 Id. rulef33. 



4:4,6 

p. m. and nine a. m. being excluded unless the returning officer 
and agents otherwise agree. 1 During the adjournment of the 
canvass the ballot papers and other documents pertaining to the 
election are to be placed under the seal of the returning officer and 
agents, and all necessary precautions are to be taken for their 
safe keeping. 2 

§ 527. It is provided by law, in several of the states, that the 
precinct canvassers, before they commence the canvass of the 
votes, shall count the ballots, and, if they be found to outnumber 
the voters' names on the poll-list, shall remove and destroy the 
supernumerary ballots. Where such statutory requirements are 
disregarded by the officers, without fraudulent intent, the super- 
numerary votes will be deducted, pro rata, from the aggregate 
numbers of votes, for the respective candidates, found in the box. 3 
The English statute requires the returning officer, before commenc- 
ing the canvass of the votes, to open each ballot-box, in the 
presence of the agents, take out all the ballot papers, count and 
record the number of them, and then mix them all together. 4 

§ 528. The formal requisites of the ballot are generally pre- 
scribed by statute. The provisions relating to the English ballot 
papers have already been explained. 5 Statutes requiring ballots 
to be indorsed in a particular manner are not mandatory, but 
directory. 6 Where two or more candidates are voted for, at the 
same time, each piece of paper, given in as a vote, and having a 
name or names upon it, is to be considered a ballot, in estimating 
the number of ballots cast, whether it has the requisite number of 
names upon it, or not. 7 A town having voted to send six repre- 
sentatives, to be voted for on one ticket, some of the electors voted 
for all the representatives on single ballots ; some for a less 
number on single ballots ; some deposited six separate ballots, 
with one name on each ; and one voter, after depositing one bal- 
lot containing one name, deposited another containing five names. 
After the votes were thus received, they were cut and severed, 
before they were counted. It was held that the election was void, 
it being impossible to determine the number of persons who 



1 35 and 36 Vict. c. 34, rule 34. 

2 Id. rule 35. 

3 Finley V. Walls, Smith, 367. 

4 35 and 36 Vict. c. 33, rule 34. 



5 Antess. 427, 455. 

6 People v. McManus, 34 Barb. 620. 

7 Allen's case, C. S. & J. 365. 



447 

voted. 1 Where the electors, voting for, or against, a proposed 
issue of school-district bonds, were required to deposit ballots 
containing the words, "For the bonds," or the words, " Against 
the bonds," it was held that ballots cast "For bonds" and 
" Against bonds " were legal. 2 In a proclamation, for an election 
authorized by law, the question submitted to the electors was 
stated as follows : " Shall the county seat of Delaware county, 
Iowa, be relocated from Delhi to Manchester ? " The statute 
contained the following provision : "The ballot shall state that 
it was cast for the county seat, and name the place voted for." 3 
Ballots were cast, in the following form, " For the county seat, 
Delhi ; " " For the county seat, Manchester ; " " Shall the county 
seat of Delaware county, Iowa, be relocated from Delhi to Man- 
chester ? Yes." " Shall the county seat of Delaware county, 
Iowa, be relocated from Delhi to Manchester ? No." It was held 
that these ballots were all sufficient to indicate the intentions 
of the voters, and were valid. 4 In England, a ballot paper, which 
bears the voter's signature, is void, and a ballot paper, which 
bears the name of a candidate, written by the voter, instead of a 
cross opposite to his printed name, is void. 5 

§ 529. The statutes contained the following provisions : " Said 
ballot shall not bear upon it any device whatever, nor shall there 
be any writing, or printing, thereon, except the names of the 
persons, and the designations of the offices to be filled." 6 "The 
county court, on petition of one hundred legal voters of said 
county, shall cause to be submitted, to the voters of the county, 
the question of township organization, under this article, by the 
ballot, to be written, or printed, ' For township organization,' or 
' Against township organization,' to be canvassed and returned in 
like manner as votes for county officers." 7 " Upon petition of one 
hundred freeholders of any county, in this state, asking for the 
same, the county court shall submit, to the qualified voters of 
such county, at a general, or special, election, as prescribed in 
this chapter, the question of restraining swine from running at large. 
There shall be written, or printed, on each ballot voted at any 

1 Emery's case, C. S. & J. 191. 5 Woodward v. Sarsons, 44 L. J. C. P. 

2 State d. Metzger, 26 Kan. 395. 293. 

3 Code Iowa^ 1873, s. 286. 6 Kev. Stat. Mo. 1879, s. 5493. 

, 4 2 Hawes v. Miller, 56 Iowa, 395. 7 Id. s. 7430. « 



448 

such election, either of the following sentences, ' For restraining 
swine from running at large,' ' Against restraining swine from 
running at large.' " When ballots, cast at an election for state, 
county, and township officers, contained, in addition to the names 
of the candidates, and the offices to be filled, a clause for, and a 
clause against, township organization, one of these clauses being 
erased, and a clause for, and a clause against, restraining swine 
from running at large, one of these clauses also being erased, with 
a caption in the words, " Erase the clause you do not favor," it 
was held that the form of the ballot did not invalidate it, either 
as to township organization or as to the restraining of swine, or 
as to the township officers. 1 

§ 530. The Indiana registry law contained the following provi- 
sion : " All ballots, which may be cast at any election hereafter 
held in this state, shall be written, or printed, on plain white 
paper, without any distinguishing marks or other embellishment 
thereon, except the names of the candidates and the office for 
which they are voted for ; and inspectors of election shall refuse 
all ballots offered of any other description : Provided, Nothing 
herein shall disqualify the voter from writing his own name on 
the back thereof." 3 The supreme court held that the words "City 
Union Ticket," printed at the top of the ballot, on its face, did 
not constitute a distinguishing mark, within the meaning of the 
law, and said : " The object of the act under consideration evi- 
dently was to protect the elector from the undue influence and 
control of others, and to secure to him entire freedom of opinion, 
in the exercise of the elective franchise, by enabling him to cast 
his vote in such a manner as to prevent others, who, from their 
particular relations to him, might, by intimidation, or otherwise, 
seek to control his vote, from being able to determine, from the 
color of his ticket, or some distinguishing mark thereon, the party, 
or person, for whom he voted. This object would seem to be 
secured, as far as legislative enactment could effect it, by requiring 
all the ballots cast to be uniform, in external appearance ; and 
such we think is the proper meaning of the section of the statute 
under consideration." 3 Under the same statute it was held that 

1 Applegate v. Eagan, 74 Mo. 258. ley v. State, 29 id. 312; Napier «, May- 

2 Laws Ind. 1867, 120, s. 23. hew, 32 id. 275 ; Wyman v. Lemon, 51 

3 Druliner v. State, 29 Ind. 308 ; Steign- Cal. 273. 



449 

the fact that the ballots were so printed that the names and desig- 
nations, contained on the inside, were legible, through the paper, 
on the outside, did not justify the inspectors of election in refusing 
such ballots. 1 

§ 531. The designation of the respective districts, on ballots for 
district electors of president and vice-president, is not an infringe- 
ment of a statute declaring that " the ballot must be a plain piece 
of white paper, without any figures, marks, rulings, or embellish- 
ments, thereon." 2 A statute directing that the ballot shall contain 
the name of the person voted for, without any distinguishing 
mark, does not warrant the rejection of a ballot for the reason 
that the abbreviation " Hon." is prefixed to the name. 3 The words 
" Republican Ticket," printed on the face of the ballot, at the top, 
are not such a distinguishing mark as to require the rejection of 
the ballot. 4 

§ 532. The statute contained the following provision : " No 
ballot shall be received, at any election of state or town officers, 
unless in writing, or printing, upon clean white paper, without any 
distinguishing marks, or figures, thereon, besides the name of the 
person voted for, and the office to be filled, but no vote shall be 
rejected on this account, after it is received, in the ballot-box." 5 
The statute also contained the following provision : The governor 
and council " shall open and compare the votes so returned, and 
may receive testimony, on oath, to prove that the return from any 
town does not agree with the record of the vote of such town, in 
the number of votes, or the names of the persons voted for, and 
to prove which of them is correct ; and the return, when found to 
be erroneous, may be corrected by the record." 6 It was held by 
the supreme court of Maine that, in counting votes for county 
officers, the governor and council were not authorized to reject 
ballots with distinguishing marks, which had been illegally received 
by the officers of election. 7 Under a statute declaring that " when 
a ballot, found in any ballot-box, bears, upon the outside thereof, 
any impression, device, color, or thing, or is folded in a manner 

J State v. Adams, 65 Ind. 393. holland v. Bryant, 39 Ind. 363. But see 

2 Lowe v. Wheeler, 2 Ells. 61. Yeates v. Martin, 1 Ells. 384. 

3 Burns v. Young, Smith, 179. 5 Rev. Stat. Me. 1857, c. 4, s. 22. 

4 Stanley v. Manley, 35 Ind. 275 ; Mil- 6 ?Id. c. 78, s. 5. 

7 Opinion of the Justices, 54 Me. 602, 

29 



450 

designed to distinguish such ballot from other legal ballots de- 
posited therein, it must, with all its contents, be rejected," 1 and 
that " when upon a ballot, found in any ballot-box, a name has 
been erased, and another substituted therefor, in any other manner 
than by the use of a lead pencil, or common writing ink, the sub- 
stituted name must be rejected, and the name erased, if it can be 
ascertained from an inspection of the ballot, must be counted, and 
the fact thereof must be noted upon the ballot, and such note 
must be signed by a majority of the election board," 2 the discolor- 
ation of a ballot, by the use of ink, for the cancellation of the 
name of a candidate, will not justify the rejection of the ballot. 3 
§ 533. It was enacted as follows : " All ballots shall be written, 
or printed, on plain white paper, without any picture, sign, vign- 
ette, device, or stamp, or mark, except the writing, or printing, in 
black ink, or black pencil, of the names of the candidates, and the 
several offices to be filled, and except the name of the political 
party, whose candidates are on the ticket." 4 The supreme court 
of the state held that the use of diamond shaped paper, for the 
ballots, was not prohibited by this statute. 5 Ballots printed upon 
ruled paper, tinged with blue, the ruling not having been made for 
the purpose of distinguishing them, are printed upon white paper, 
within the meaning of a statute, declaring that "no ballot shall be 
received, or counted, unless the same is written, or printed, upon 
white paper, without any marks, or figures thereon, intended to 
distinguish one ballot from another." 6 Under a statutory pro- 
vision that, " when a ballot, found in any ballot-box, bears, upon 
the outside thereof, any impression, device, color, or thing, or is 
folded in a manner designed to distinguish such ballot from other 
legal ballots deposited therein, it must, with all its contents, be 
rejected," 7 an indorsement on a ballot, made by the officers of 
election, will not justify its rejection. 8 Under a statute requiring 
each elector to deposit a " ballot paper, on the back of which the 
deputy returning officer shall have previously put his initials, so 
placed that, when the ballot is folded, they can be seen, with- 
out opening it," 9 and declaring that the deputy returning officer 

1 Pol. Code, Cal. s. 1206. 6 People v. Kilduff, 15 111. 492 ; Stat. 

2 Id. s. 1204. 111. 1849, p. 74, s. 15. 

3 Wyman v. Lemon, 51 Cal. 273. 7 Code Cal. s. 1206. 

4 Stat. Tex. 1879, c. 112, s. 1. 8 Wigginton v. Pacheco, 1 Ells. 5. 

5 State v. Phillips, 63 Tex. 390. 9 Stat. Dominion, 41 Vict. c. 6. 



451 

" shall reject all ballots, which have not been supplied by him- 
self," when this officer has the means of identifying the ballot 
papers, as papers supplied by himself to the voters, his failure 
to indorse them, with his initials, will not invalidate the election, 
if it do not affect the result, or cause substantial injustice. 1 The 
requirement of the English ballot act of 1872, that the ballot 
paper shall be secretly marked, by the voter, is mandatory ; but 
the provision prescribing the manner, in which it shall be so 
secretly marked, is directory. 2 

§ 534. A statute of the state of Mississippi contained the follow- 
ing provision : "All ballots shall be written, or printed, with black 
ink, with a space of not less than one-fifth of an inch between 
each name, on plain white news printing paper, not more than 
two and one-half, nor less than two and one-fourth, inches wide, 
without any device, or mark, by which one ticket may be known, 
or distinguished, from another, except the words at the head of 
the tickets ; but this shall not prohibit the erasure, correction, or 
insertion of any name, by pencil mark, or ink, upon the face of 
the ballot ; and a ticket different from that herein prescribed shall 
not be received or counted." 3 It was held, by the supreme court 
of the state, that mere printer's dashes, or ornamentation, if suffi- 
cient to distinguish a ballot from others, rendered the ballot 
illegal ; 4 and that a single faint dotted line, across the face of the 
ticket, between two names, was fatal to the ballot. 5 

§ 535. A constitutional provision, that all elections shall be held 
by ballot, guaranties the secrecy of the ballot, and is violated by a 
statute requiring the tickets to be numbered, to correspond with 
the voters' numbers on the poll-list. 6 The constitution of Indiana 
requiring that "all elections by the people shall be by ballot," 7 a 
statute was enacted in these words : "It shall be the duty of the 
inspector of any election held in this state, on receiving the ballot 
of any voter, to have the same numbered, with figures, on the out- 

1 Jenkins v. Brecken, 7 S. C. Canada, also Temple v. Mead, 4 Vt. 535 ; Com- 
247. monwealth v. Woelper, 3 S. & K. 29 ; 

2 Woodward v. Sarsons, 44 L. J. C. P. Kneass' case, 2 Parsons' Eq. Cas. 553 ; 
293. People v. Cicott, 16 Mich. 283 ; People 

3 Code Miss. 1880, s. 137. v. Pease, 27 N. Y. 45 ; Williams v. Stein, 

4 Oglesby v. Sigman, 58 Miss. 502. 38 Ind. 89 ; State v. Hilmantel, 23 Wis. 

5 Steele v. Calhoun, 61 id. 556. 422 ; Ledbetter v. Hall, 62 Mo. 422. 
"Brisbin v. Cleary, 26 Minn. 107. See 7 Const. Ind, 1851, art. 2, s. 13. 



452 

side, or back, thereof, to correspond with the number placed oppo- 
site the name of such voter, on the poll-lists kept by the clerks of 
said election." 1 It was held, by the supreme court of the state, 
that the ballot, secured by the constitution, was the secret ballot. 
The judge, who delivered the opinion of the court, said : " My 
convictions are clear that our constitution was intended to, and 
does, secure the absolute secrecy of a ballot, and that the act in 
question, which directs the numbering of tickets, to correspond 
with the numbers set opposite the names of the electors, on the 
poll-lists, is in palpable conflict, not only with the spirit, but with 
the substance, of the constitutional provision. This statute was 
intended to, and does clearly, identify every man's ticket, and 
renders it easy to ascertain exactly how any particular person 
voted. That secrecy, which is esteemed, by all authority, to be 
essential to the free exercise of suffrage, is as much violated, by 
this law, as if it had declared that the election should be viva 
voce." 2 In England, a ballot paper, marked, on its face, by the 
presiding officer, with the number of the voter, is void, and cannot 
be counted. 3 But, in the United States, the numbering of the 
ballots, by the election officers, is not fatal to the vote of the pre- 
cinct, in the absence of express statutory provision to that effect, 4 
Even if the statute make it a misdemeanor for the judge of elec- 
tions to place any number, or mark, upon the ballot of a voter, 
without expressly requiring the exclusion of marked, or numbered, 
ballots, the presence of a number, or mark, on a ballot, will not 
justify its rejection by the canvassers. 5 Under a statutory pro- 
vision that the judges of election shall cause to be placed, on each 
ballot, " the number corresponding with the number of the person 
offering the same," and that " no ballot, not numbered, shall be 
counted," the absence of the number is fatal to the ballot. 6 

§ 536. When several votes are cast, by the same voter, for the 
same candidate, in the absence of statutory provision to the 
contrary, one is to be counted and the others rejected. 7 Under a 

1 Stat. Ind. May 13, 1869, s. 2. 5 Giddings v. Clark, Smith, 91. 

2 Williams v. Stein, 38 Ind. 89. fi Lindsay v. Scott, 1 Bart. 569. 

3 Woodward v. Sarsons, 44 L. J. C. P. 7 Prince v. Clark, L. & E. 65 ; State v. 
293. Pierce, 35 Wis. 93 ; People v. Saxton, 22 

4 Finley v. Walls, Smith, 367 ; Mc- N. Y. 309 ; Ashfield case, C. S. & J. 
Kenzie v. Braxton, id. 19; Giddings 583; People v. Holden, 28 Cal. 123; 
V, Clark r id. 91. Cushing, L. & Pr. 91. 



453 

statute requiring the names of all the candidates voted for to be 
on the same ballot, a vote for a candidate, on a separate slip of 
paper, folded within the numbered ballot, will be rejected. x Three 
ballots having been found in the ballot-box, bearing the name of 
the same candidate, and so folded together as to satisfy the select- 
men that they were all deposited by the same person, the selectmen 
rejected two, and counted the third ; and, there being no evidence 
to contradict the conclusion of the selectmen, or to impute any 
unfairness to them, the house of representatives of Massachusetts 
refused to set aside the election, on the ground of such rejection. 2 
When two ballots, for the same candidate, were found folded, 
and so close together that it could hardly be discerned that there 
were two, and they were laid aside, by one of the selectmen, with 
the purpose of calling the attention of the selectmen to them, and 
afterwards, having become mixed with other votes, they were both 
counted, it was held that one of the votes should be rejected. 3 
When ballots are found so folded, or adhering, together, in the 
ballot-box, as to prove double voting, in the judgment of the 
selectmen, who thereupon reject one of each set of double votes, 
the judgment and action of the selectmen will be presumed to have 
been correct. 4 Under a statutory provision that, "if there be 
two tickets rolled up together, or if any ticket contain the names 
of more persons than the elector has a right to vote for, in either 
of these cases such ticket shall not be numbered, in taking the 
ballots, but shall be adjudged void," 5 it is competent for the 
officers of election, in their certificate, to set forth the fact that 
such vote has been adjudged void. 6 Ballot papers, wrapped in 
declarations of inability to read, are not, on that account, to be 
rejected. 7 

§ 537. Under a statute providing that " the judges shall indorse, 
on the back of the ticket, the number corresponding with the 
number of the voter on the poll books, and shall immediately put 
the ticket into the ballot-box," 8 a numbered ballot is not to be 
excluded from the canvass merely because an unnumbered ballot 

1 Webster v. Gilmore, 91 111. 324. "State v. Board of Inspectors, 6 B. J. 

2 Wilbur's case, C. S. & J. 465. Lea, 12. 

3 Shaw v. Abbott, L. & K. 139. 7 Woodward v. Sarsons, 44 L. J. C. P. 

4 Prince v. Clark, id. 65. 293. 

5 Code Tenn. 1870, s. 62. b Kev. Stat. 111. 1874, c. 46, s. 55. 



454 

is found folded within it. 1 A statutory provision that, "if two 
or more ballots shall be found so folded together as to present 
the appearance of one ballot, they shall be laid aside, until the 
count of the ballot is completed ; and if, upon a comparison of 
the count, and the appearance of such ballots, a majority of the 
board shall be of opinion that the ballots thus folded together 
were voted by one elector, they shall be destroyed," 3 does not 
warrant the rejection of a ballot presenting the name of the office 
and candidate twice, on a single slip of paper, as follows: "For 
County Judge, William Hawes. For County Judge, William 
Hawes." 3 A statutory provision that two or more ballots, folded 
together so as to present the appearance of a single ballot, shall 
be destroyed, is not applicable to the case of two papers folded 
together, not being both ballots for candidates for the same office, 
but containing, one the names of candidates for county offices only, 
and the other the names of candidates for township offices only. 4 
The judges of the election, in their canvass of the votes, having, 
under the statute of the state, rejected two ballots, as double and 
fraudulent, evidence was admitted to show that this was an error 
in fact, and, upon the evidence, the committee decided that the 
vote should be counted for the contestant. 5 A candidate, at a 
municipal election, in England, was twice nominated, one nomina- 
tion being good, and the other bad. His name appeared in the 
ballot papers twice, once in respect of each nomination. He 
received seventy-one votes, under one nomination ; and three 
hundred and one, under the other. All the votes were intended 
for him, and if both classes could have been added together, he 
would have had a majority, and would have been entitled to be 
returned. It was held that he was duly nominated, had a majority 
of the votes, and was entitled to be returned. 6 

§ 538. The authorities are not entirely harmonious on the ques- 
tion of the effect to be given to ballots containing the initials only 
of the christian names. But the preponderance of authority is 
decidedly in favor of the doctrine that ballots, containing the 
initials only of the christian names, are to be counted for those 

'Dale v. Irwin, 78 111. 170; Clark v. 4 Wildman v. Anderson, 17 Kan. 344. 

Robinson, 88 111. 498. :, Reed v. Cosden, C. & H. 353. 

2 Stat. Wis. c. 7, s. 72. 6 Northcote v. Pulsford, 10 L. E. C. P. 

3 State v. Pierce, 35 Wis. 93. 476. 



455 

persons having the same initials, for whom the voters intended to 
cast them ; and that any competent evidence, legitimately tending 
to show the intention of the voters, may be used for that purpose, 
including proof that such persons usually signed their own names 
in the forms which appeared on the ballots ; that they had pre- 
viously held the same offices, and were candidates therefor, at 
the time of the election; that the people applied the abbrevia- 
tions to them ; that no other persons, to whom they could be 
properly applied, resided in the election district, or were eligible 
to, or named for, the offices. It was held, by the supreme court 
of the state of New York, 1 that, on the trial of a contested elec- 
tion case, before a jury, ballots, containing the initials only of the 
christian name, were to be counted for the person for whom they 
were intended ; and that, to arrive at such intention, it was compe- 
tent to prove that he usually signed his name in the form which 
appeared on the ballots ; that he had previously held the same office, 
and was a candidate therefor at the time of the election ; that the 
people generally would apply the abbreviation to him, and that 
no other person was known in the county to whom it was applicable. 
This decision has been repeatedly affirmed in the state of New 
York. The supreme court of Wisconsin has held that ballots, 
containing initials only of the christian names, were to be counted 
for the persons for whom the jury found the voters to have 
intended them, even though the initials were incorrect. 2 But it 
has been held, by the supreme court of Michigan, 3 that a ballot, 
containing only initials of a christian name, could not be counted 
for a person having the same surname and a christian name with 
the initials shown on the ballot, because it did not contain his name, 
and no evidence, except that furnished by the ballot itself, was 
admissible to show the intention of the voter. This rule was sub- 

1 People v. Ferguson, 8 Cow. 102. Matthew H. Carpenter, the relator. 

2 Carpenter v. Ely, 4 Wis. 420. The Such being the fact, it clearly follows 
court said: "In the present case the that they should be counted for him." 
jury found that the two votes, given for 3 People v. Tisdale, 1 Dougl. (Mich.) 
M. D. Carpenter, the four votes, given 59. In this case the court considered 
for D. M. Carpenter, the one, for M. T. and disapproved the decision in the case 
Carpenter, and the one, for Carpenter, of People v. Ferguson, 8 Cow. 102, and 
were, when given and cast, intended, by said : "A ballot for J. A. Dyer cannot 
the electors who gave and cast them, be counted for James A. Dyer." 
respectively, to be given and cast for 



456 



sequently affirmed by the unanimous judgment of the supreme 
court of Michigan. 1 But the force of these precedents was con- 
siderably impaired by a still later decision 3 of the same court, in 
which only one of the three judges approved, without qualification, 
the rule above stated, another, although formally adhering to the 
rule, disapproved it on principle, 3 and the third judge was of the 
opinion that the rule should be set aside, and that which had been 
approved by the supreme courts of New York and Wisconsin 
adopted, as the law of Michigan. 4 The question whether ballots, 
containing the initials only of the christian name, were to be 
counted, was decisive of a case which was adjudicated by the 
house of representatives of the forty-second congress. The com- 
mittee considered the New York, Wisconsin, and Michigan authori- 
ties, and declared the true rule to be that ballots, containing the 
initials only of a christian name, could be counted for a person, 
having the same surname, and a christian name with the same 
initials, if proved, by extrinsic evidence, to have been intended for 
him. 5 



: People v. Higgins, 3 Mich. 233. The 
court said : 

"Evidence of the intention of persons 
voting, at an election, is not admissible. 
Such intention must be determined from 
the ballot. Thus it is not competent to 
show that a ballot cast for H. J. Higgins 
was intended for Henry J. Higgins." 

2 People v. Cicott, 16 Mich. 283. 

3 He said : 

"With reference to these ballots, in 
which the christian names of the re- 
spective candidates were expressed only 
by initials, I concur in adhering to the 
rule established in People v. Tisdale, 1 
Dougl. 59 ; yet I am compelled to say 
that, but for that decision, I should have 
been disposed to hold that, upon princi- 
ple, extrinsic evidence might be given to 
show for whom the vote was intended, 
as that the candidates were in the habit 
of thus writing their names ; that they 
were as well known, respectively, by the 
name of E. V. Cicott, and G. O. Wil- 
liams, as by Edward V. Cicott, and 
Gordon 0. Williams; that they were 
opposing candidates, at the election for 
the same office ; and that no other per- 
son, of the same surname and the same 
initials, was known to be running for 
the office." 



4 He expressed his opinion as follows : 

" The true rule, upon this subject, I 
conceive to be this : Evidence of such 
facts as may be called the circumstances 
surrounding the election, such as who 
were the candidates brought forward by 
the nominating conventions ; whether 
other persons, of the same name, resided 
in the district, from which the office was 
to be filled ; and, if so, whether they 
were eligible to the office, and were 
publicly named for it, and the like, is 
always admissible, for the purpose of aid- 
ing in the application of any ballot, 
which has been cast : and when the in- 
tent of the voter, as expressed by his 
ballot, when considered in the light of 
such surrounding circumstances, is not 
doubtful, the ballot should be counted 
and allowed for the person intended." 

5 McKenzie v. Braxton, Smith, 19. To 
show that the extrinsic evidence, re- 
quired by the rule, had been furnished, 
in this case, the committee set forth the 
facts established by the depositions as 
follows : 

' ' The proof in this case clearly shows 
that the sitting member is known 
throughout the district as well by the 
name of E. M. Braxton as by that of 



457 

§ 539. The house of representatives of the United States will 
not apply the strict rules which have sometimes, though not always, 
been held to govern canvassing officers, whose duty is purely 
ministerial, who have no discretionary powers, and can neither 
receive, nor consider, any evidence outside the ballots themselves. 
It is manifest that the house, with its large powers, and wide dis- 
cretion, should not be confined within any such narrow limits. 
The house possesses all the powers of a court having jurisdiction 
to try the question who was elected. It is not even limited to the 
•powers of a court of law, but, under the constitution, clearly pos- 
sesses the functions of a court of equity also. And, if it were true 
that ballots, containing no part of the christian names except 
their initials, or wanting wholly the christian names, could not be 
counted by the canvassers, it would not follow that such ballots 
could not be counted by the house. The fact that ballots do not 
contain the full christian names, but only their initials, is not a 
sufficient ground for their rejection by the house. * The law knows 
but one christian name ; and the omission of a middle name, or 
of its initial letter, is not fatal or material. 2 But independently 
of this principle of law, ballots which lack one of a candidate's 
christian names, but are shown by the proofs to have been intended 
for him, may be counted for him. For, while it is true that no 



Elliott M. Braxton and that he is famil- 
iarly called Elliott Braxton; also that 
there is no other person in the district 
except the sitting member's infant son 
who bears the name of Elliott M. Brax- 
ton, E. M. Braxton, or Elliott Braxton ; 
and that the sitting member was regu- 
larly nominated for congress by the 
democratic or conservative convention 
of the district ; that his letter of accept- 
ance was signed E. M. Braxton ; and 
that he canvassed the district and was 
the only person of the name of Braxton 
who was a candidate." 

See also Clark v. Board of Examiners, 
126 Mass. 282 ; Getchell v. Moran, 124 
id. 404; Patrick v. Smith, 120 id. 
510 ; Commonwealth v. Hamilton, 15 
Gray, 480 ; Commonwealth v. O'Baldwin, 
103 Mass. 210 ; Sowle v. Sowle, 10 Pick. 
376: Shelburne v. Rochester, 1 id. 
470 ; Collins e. Douglas, 1 Gray, 167 ; 
People v. Cook, 8 N. Y. 67 ; People v. 



Seaman, 5 Denio, 409 ; People v. Mc- 
Manus, 34 Barb. (N. Y.) 620 ; State v. 
Gates, 43 Conn. 538 ; Clark v. Robin- 
son, 88 111. 498 ; Talkington v. Turner, 
71 id. 234 ; People v. Matteson, 17 id. 
167 ; Regina v. Bradley, E. & E. 634 ; 
Gunter v. Wilshire, Smith, 130 ; Lee v. 
Rainey, id. 589 : Chapman v. Fergu- 
son, 1 Bart. 267 ; Merriam v. Batchelder, 
L. & R. 294; Arnold v. Champney, id. 
121. 

But see also Opinion of Justices, 64 
Me. 596. 

1 McKenzie v. Braxton, Smith, 19. 

2 McKenzie v. Braxton, id. 19 ; People 
v. Cook, 14 Barb. 259 ; Milk v. Christie, 
1 Hill N. Y. 102; People v. Cook, 4 
Seld. 67; Bratton v. Seymour, 4 Watts, 
329 ; Franklin v. Talmadge, 5 Johns. 
84. 



458 

evidence can be received, aliunde, to contradict the ballot, or to 
give it a meaning when it expresses no meaning itself, yet if it be 
ambiguous or doubtful it may be construed in the light of sur- 
rounding circumstances in the same manner and to the same extent 
as a written contract. 1 

§ 540. Where the statute requires every elector to deliver, to 
the officers of election, " a voting paper containing the christian 
names and surnames of the persons for whom he votes, with their 
respective places of abode and descriptions, such paper being pre- 
viously signed with the name of the burgess voting, and with the 
name of the street, lane, or other place, in which the property, for 
which he appears to be rated on the burgess-roll, is situated," 2 
and declares that " no misnomer, or inaccurate description, of 
any person, body corporate, or place, *■■ shall hinder the full 
operation of this act, * provided that the description of such 
person, body corporate, or place, be such as to be commonly 
understood," 3 an entire omission of the description of the person 
voted for is not an " inaccurate description," cured by the statute, 
but is fatal to the ballot, or voting paper ; but the use of the initial 
only of the christian name of the person voted for is a misnomer 
cured by the statute. 4 Under a statute providing that, " if it shall 
appear that the returns have been received from all the counties, 
agreeably to the provisions of this chapter, the governor and 
secretary of state shall forthwith proceed to ascertain the number 
of votes given for the different persons for such offices," 5 where 
the governor and secretary of state, in canvassing the returns of 
votes, from a congressional district, aggregate the votes returned 
from one county for H. L. Morey, with those returned from other 
counties for Henry L. Morey, treating both names as designating 
the same person, a mandamus will not be awarded to compel the 
canvassers to count the votes, so aggregated, as cast for different 
persons, in the absence of an averment that the votes were 
intended for different persons. 6 When Joseph W. Holmes was 
a candidate, and the ballots were cast and counted for J. W. 
Holmes, and the town clerk, supposing the name to be John, so 

1 McKenzie v. Braxton, Smith, 19 ; 4 Regina v. Tugwell, 9 B. & S. 367. 
Cooley, Const. Lim. 611. 5 Rev. Stat. Ohio, s. 2986. 

2 5 and 6 W. 4, c. 76, s. 32. tt State e, Foster, 38 Ohio St. 599. 

3 Id. s. 142. 



459 

entered it upon the transcript, but, before delivering the transcript 
to the canvassing board, opened it, and erased all but the initial 
letter of, the word John, it was held that the irregularity did not 
invalidate the vote of the town. 1 If the statute require the voting 
paper to be signed with the voter's name, the initial of his christian 
name will be sufficient. 2 

§ 541. It has been held that ballots containing the surname of 
a candidate, without his christian name, are to be counted for 
him. 3 Ballots containing the name "Thomas T. Wright" were 
counted for Joseph T. Wright, upon proof that there was no per- 
son named Thomas T. Wright, in the district, and no person, ex- 
cept the petitioner named Wright, eligible to office in the district, 
and that Joseph T. Wright was one of the candidates of his party 
for the office, and that his name was printed " Thomas," instead 
of Joseph, on some of the ballots, by mistake. 4 The proofs showed 
that Henry Malzacher and Donald C. McKinnon were the only 
candidates for the office in question ; that no person, of the name 
of Joseph Malzacher, resided in the town, or had been heard of 
by the witnesses, who professed to be well acquainted with the 
Malzacher family, and were residents and electors of the town ; 
that the name of Joseph Malzacher was printed on a number of 
ballots and voted, by mistake, the person who caused the ballots 
to be printed and those who voted them being informed and 
believing, at the time, that the name of the democratic nominee 
was Joseph Malzacher, but intending that the name should be 
that of the democratic nominee, who was Henry Malzacher, and 
that the ballots should be cast for him. There was no affirmative 
evidence of the existence of any person of the name of Joseph 
Malzacher. It was held that the votes should be counted for 
Henry Malzacher. 5 But it has been held, by the supreme court 

'Newcomb v. Holmes, L. & R. 57. People v. Cook, 8 N. Y. 67 ; People 9. 

2 Regina 9. Avery, 18 Q. B. 576. Seaman, 5 Demo, 409 ; People 9. Mc- 

3 Talkington v. Turner, 71 111. 234 ; Manus, 34 Barb. (N. Y.) 620 ; State 9. 
Clark v. Robinson, 88 id. 498 ; Wilson Gates, 43 Conn. 538 ; Clark v. Robinson, 
9. Peterson, 69 N. C. 113 ; Sessinghaus 88 111. 498 ; People v. Matteson, 17 id. 

- 9. Frost, 2 Ells. 380 ; Carpenter 9. Ely, 167 ; Regina 9 Bradley, E. & E. 634 ; 

4 Wis. 420. McKenzie v. Braxton, Smith, 19 ; Gunter 

4 Wright 9. Hooper, L. & R. 100. v. Wilshire, id. 233 ; Lee 9. Rainey, id. 

5 McKinnon 9. People, 110 111. 305. 589 ; Chapman 9. Ferguson, 1 Bart. 267. 
See also People v. Ferguson, 8 Cow. 102 ; 



460 

of Maine, that canvassers cannot legally count for William H. 
Smith ballots cast for W. H. Smith, or for William Smith, even 
though the return of the precinct officers show that these different 
names were intended for the same person ; and- that they cannot, 
upon evidence, correct the returns. 1 

§ 542. When the designation of a candidate, on a ballot, is by 
an abbreviation sanctioned by common usage and universally 
understood, the ballot may be counted for the person for whom 
it was evidently intended. A ballot cast for Jas. A. Dyer was 
intended for James A. Dyer, and is to be counted for him. 3 A 
statute requiring a voting paper to contain " the christian name and 
surname " 3 of the person voted for, is satisfied when the voting 
paper contains a contraction of a christian name, which is well 
known and in common use, as representing that name, as " Win." 
or " Willm." for William. 4 In cases of abbreviations of the 
christian names of candidates it has been held that the abbre- 
viated christian names "Geo." "Hen." " Wm." " Benj." " Jas." 
and " Jno." were equivalent to the full christian names George, 5 
Henry, 6 William, 7 Benjamin, 8 James, 9 and John, 10 respectively. 

§ 543. A contested election case, in the house of representatives 
of the United States, turned on the question whether certain bal- 
lots, inscribed wi^h the name " Jas. H. Bainey," were to be counted 
for Joseph H. Bainey. The committee held that it was both the 
right and the duty of the representatives, acting as the judges of 
the election, qualifications, and return of a member of the house, 
to look at the circumstances surrounding the case, in order to 
ascertain the real intent and act of the voters. They found the 
facts to be that only two candidates were nominated, Samuel Lee 
and Joseph H. Bainey ; that the ballots in question were printed 
for Joseph H. Bainey ; that it did not appear that any man of the 
name of James H. Bainey, eligible to the office of representative 
in congress, resided, at that time, in the district ; and that the 
ballots cast for " Jas. H. Bainey " were intended for Joseph H. 

1 Opinion of Justices, 64 Me. 596. 7 Chumasero v. Gilbert,. 26 111. 39. 

* Peoples. Tisdale, 1 Dougl. (Mich.) 59. 8 Gilliam v. Bank, 2 Scam. 245. 

3 7 W. 4& 1 Vict. c. 78, s. 14. "People v. Tisdale, 1 Dougl. (Mich.) 

4 Regina v. Bradley, 3 El. & El. 634. 59. 

5 People v. Ferguson, 8 Cow. 102. "Bank v. Peel, 11 Ark. 750. 

fi Ib. 



461 



Rainey. The ballots were accepted by the committee and by the 
house. 1 

§ 544. The word " junior," added to a name, is not a part of the 
name, but only a descriptive term. Votes cast for " Luther Chapin, 
of Ware," will be counted for Luther Chapin, junior, of Ware, if 
it appear that he was known to be a candidate for the office, that 
his father, Luther Chapin, did not reside in the district, and was, 
therefore, not eligible to the office, and that no other person, of 
that name, resided in the town. 2 



1 Lee v. Eainey, Smith, 589. The com- 
mittee said : 

" In this case the main question to be 
determined is whether 669 ballots bear- 
ing the name ' Jas. H. Rainey,' cast 
in the county of Georgetown, were in- 
tended for and cast for ' Joseph H. 
Rainey;' for if those ballots are counted 
for Joseph H. Rainey, then he has a 
decided majority, and is duly elected ; 
while, on the other hand, if the same 
are not counted for him, he is not 
elected. As this question is clearly de- 
cisive of the case, the committee have 
not deemed it necessary to consider the 
other questions raised by the notice of 
contest and answer. There is a question 
of law and a question of fact involved. 
The question of law is whether the house 
can look beyond the ballot to ascertain 
the voter's intent. The committee think 
it clear that, although canvassing offi- 
cers charged with purely ministerial 
duties may not go outside the ballot, 
whatever may be the defect in the same, 
but must make their return upon the 
ballots, as they appear upon their face, 
the house, as the final judge of the elec- 
tions, returns, and qualifications- of its 
members, has not only the right, but 
the duty when a ballot is ambiguous, 
or of doubtful import, to look at the 
circumstances surrounding the election 
explaining the ballot, and to get at the 
intent and real act of the voter." 

The committee found as a fact that 
the ballots inscribed with the name "Jas. 
H. Rainey," were cast for Joseph H. 
Rainey. 

2 Chapin v. Snow, L. & R. 96. See 
also Kincaid «. Howe, 10 Mass. 203 ; 
Commonwealth v. Perkins, 1 Pick. 388 ; 
Cobb v. Lucas, 15 id. 7 ; Jameson v. 
Isaacs, 12 Verm. 611 ; Johnson v. Ellison, 



4 Monr. 526 ; Commonwealth v. Beckly, 
3 Met. (Mass.) 330; Commonwealth v. 
Parmenter, 101 Mass. 211 ; Simpson v. 
Dix, 131 id. 179; Turner v. Baylies, 
C. & H. 234 ; Williams v. Bowers, id. 
263; Willoughby v. Smith, id. 265; 
People v. Cook, 14 Barb. (N. Y.) 299; 
Hugunin v. Ten Eyck, C. & H. 501 ; 
Guyon v. Sage, id. 348. 

In the case of Isaac Williams, junior, 
against John M. Bowers, it appeared, 
from a statement of the sitting member, 
and an affidavit of a third person, that 
there were three persons of the name of 
Isaac Williams in the district, one of 
whom was designated by the addition of 
"junior;" and it was admitted, by the 
sitting member, that Isaac Williams, 
junior, and John M. Bowers were the 
only candidates at the election. The 
committee considered it probable that 
the votes returned for Isaac Williams 
were intended for Isaac Williams, junior ; 
but recommended a postponement of the 
case, for further evidence. In their 
second report, made at the next session, 
they showed that the evidence proved 
the vote in question to have been actu- 
ally cast for Isaac Williams, junior, and 
to have been returned for Isaac Williams, 
through the mistakes of the officers of the 
election, and decided that the contestant 
was entitled to the seat. Where it ap- 
peared that votes, reported in the govern- 
or's certificate, as castfor " Guntee," "T. 
M. Guntee," "Thomas M. Guntee," " T. 
Ros. Gunter," and " Gunther," were, in 
fact,cast for Thomas M.Gunter,they were 



462 

§ 545. Ballots, with erroneous middle names, may be counted 
for the persons for whom they were intended. Votes cast for 
" Alvin J. Willoughby " may, on quo warranto, be shown to have 
been intended for Alvin L. Willoughby ; and the fact that Alvin 
L. Willoughby was a candidate, and received a large number of 
votes, and that no person of the name of Alvin J. Willoughby, 
or of the name of Alvin Willoughby, resided in the district, is 
sufficient to show that the votes must have been intended for 
Alvin L. Willoughby. 1 Ballots inscribed " Henry Baker " and 
" Henry A. Baker " were counted for Henry Augustus Baker, al- 
though Henry Austin Baker resided in the same town, and was 
eligible to the office, and although the local newspaper, by mis- 
take, published the name of Henry Austin Baker, as of one of the 
candidates at the nominating caucus, and, in the same item, twice 
gave the name as Henry A. Baker, it appearing that Henry Austin 
Baker was not a candidate for election, and that Henry Augustus 
Baker was the regular candidate of his party. 2 Ballots inscribed 
"Henry P. Baker" and " H. P. Baker" were counted for Henry 
Augustus Baker, upon proof that, in the town where they were cast, 
he was generally known as Henry Paul Baker (Paul having been the 
name of his deceased father), and that, at the polls, two voters, being 
informed, by the town clerk, that his name was " Henry Paul," 
were seen to write upon their ballots. 3 The omission of a middle 
name, or middle initial, is not fatal, in Massachusetts ; but, in the 
absence of proof, the court cannot assume that George Allen and 
George E. Allen refer to the same person. 4 

counted for him by the house. Votes "Bird B. Chapman for congress," in- 
cast for Silas Wright, junior, but,through stead of "For congress Bird B. Chap- 
a mistake of the inspectors of elec- man," they were counted by the house 
tion, returned for Silas Wright, were Williams v. Bowers, C. & H. 264 ; Mc- 
counted for Silas Wright, junior. Votes Kenzie v. Braxton, Smith, 19 ; Gunter v. 
cast for Charles Turner, esquire, were Wilshire, id. 130 ; Wright v. Fisher, 
counted for Charles Turner, junior, upon C. & H. 518; Turner v. Baylies, id. 
proof of the fact that there was no 234 ; Chapman v. Ferguson, 1 Bart. 267. 
other Charles Turner in the district, ' State v. Gates, 43 Conn. 533. 
eligible to the office, and of other facts 2 Baker v. Hunt, L. & R. 378. 
indicating that the votes so cast were a Ib. 

intended for Charles Turner, junior. 4 Wright v. Hooper, L. & B. 100, note ; 

Votes rejected by the caiivassers,because Commonwealth v. Gormley, 133 Mass. 

cast for " Judge Ferguson," were, by the 580; Commonwealth v. O'Hearn, 132 

unanimous decision of the committee, id. 533 ; Dwyer v. Winters, 126 id. 186 ; 

counted for Fenner Ferguson, the sit- Commonwealth v. Shearman, 11 Cush. 

ting member. Where ballots were re- 546. 
jected by the canvassers, because headed 



463 

§ 546. Where A. and B. are candidates for the offices of judge and 
clerk, respectively, of the district court, at an election held for the 
choice of judge of the supreme court, and judge and clerk of the 
district court, a ballot, which is headed, " District ticket," and con- 
tains merely the names of A. and B., without any designation of 
the offices voted for, is illegal, and cannot be counted. 1 Where 
voting papers, presented at an election of alderman, do not contain 
an accurate description of the place of abode of the person voted 
for, the votes are bad, although the inaccuracy is without fraud, 
and the description, in the voting paper, is commonly understood 
to be that of the party. 2 In Mississippi, if the names of candidates 
for the legislature be nearer each other, on the ballots, than the 
statute permits, the entire ballot will be rejected. 3 

§ 547. The statute contained the following provision : "If the 
majority of the votes cast shall be for the increase of the number 
then, at the next ensuing election for a supervisor, the requisite 
additional supervisors shall be elected, whose terms of office shall 
be determined by lot, in such manner that one-half the additional 
members shall hold their office for three years, and one-half for 
two years." Two additional supervisors having been ordered, it 
was held that, where one of the three chosen was, by the 
pleadings, conceded to have been elected, as his own successor, 
the fact that the others had not been designated, as additional 
supervisors, on the ballots, was not fatal to their election. 4 The 
words " fourth district," after the words " For representative in 
congress," on a ballot, do not constitute a part of the legal designa- 
tion of the office ; and ballots, cast in the third congressional 
district, inscribed " For representative in congress, fourth district 
Walbridge A. Field, of Boston," must be counted for Field, as 
representative of the third district. 5 At an election, held for the 
relocation of a county seat, votes were cast for " The point between 
Lansing and Capoli," and also for "Lansing." It appeared that 
" Lansing " was the name by which " the point between Lansing 
and Capoli " was commonly designated ; and the facts showed 
that the votes cast for " Lansing " were intended for that " point." 
The judges of election returned the votes as cast for different 

1 State v. Griffey, 5 Neb. 161. 4 Bradfield v. Wart, 36 Iowa, 291. 

2 Regina v. Deighton. D. & M. 683. 5 Dean v. Field, 1 Ells. 90. 

3 Perkins «. Carraway, 59 Miss. 222. 



464 

locations ; but the votes cast for " Lansing " were counted, by the 
county canvassers, for " the point between Lansing and Capoli." 
It was held, by the supreme court of Iowa, that there was, in this, 
no improper exercise of ministerial power on the part of the can- 
vassers. 1 

§ 548. Extrinsic evidence, of a public nature, including the 
circumstances surrounding an election, may be received to correct 
a mistake, in the return of the canvassers, as to the designa- 
tion of an office on the ballots, by showing that votes cast for 
A. for county judge, were intended for A. for district judge. 2 
In Missouri a ballot for circuit clerk is a ballot for clerk of the 
circuit court. 3 In an election of trustees of common schools, at 
which no trustees of other schools are to be chosen, ballots " for 
trustees of public schools " are valid ; the intention of the electors 
is manifestly to vote for trustees of common schools ; and the 
question of their intention is not one of fact, for the jury, but- one 
of law, for the court. 4 Under a statute requiring the voter to take 
the ballot paper delivered by the returning officer, and " place a 
cross on the right-hand side, opposite the name of each candidate 
for whom he votes," 5 a ballot paper is not to be excluded from 
the canvass, because the voter's mark is placed at the left of the 
vertical line delineated on the ballot paper. 6 The words "For 
representative, sixth district," inscribed on a ballot, sufficiently 
indicate that the office intended is that of representative in con- 
gress from the sixth congressional district, when the sixth congres- 
sional district is the only " sixth district " in which the voters 
reside. 7 

§ 549. Exact orthography in the name of the candidate is not 
an indispensable prerequisite to the canvass of the ballot for the 
person for whom it was intended. A mistake in the name, whether 
made by the printer, the draftsman, or the voter himself, does not 
deprive the voter of his right to have the ballot canvassed for the 
candidate for whom it was intended, if the printed, or written, 
name sounds so nearly like the real name as to be easily mistaken 
for it. But the intention must be inferable from the ballot, and 

1 State v. Cavers, 22 Iowa, 343. 5 35 & 36 Vict. c. 33, sch. 2, p. 226. 

2 State v. Griffey, 5 Neb. 161. 6 Athlone Election, 8 Ir. K. C. L. 240. 

3 Applegate v. Eagan, 74 Mo. 258. 7 Boynton v. Loring, 1 Ells. 346. 

4 People v. McMarms, 34 Barb. 620. 



4:65 

the surrounding facts, and the mistake of easy and natural expla- 
nation. If one should vote for Richard Roe, when he intended to 
vote for John Doe, both being candidates, extrinsic proof would 
not be admissible to change the vote. A ballot containing the 
name " Edwin Waldron " was counted for Edwin Walden. x Ballots 
inscribed " Hebert " are to be counted for Herbert upon proof 
that they were intended for him and that he was the only candi- 
date of like name in the district. 2 Ballots containing the name 
" Solomon D. Hood " were counted for Salmon D. Hood on proof 
that the latter was the regular candidate of his party ; that several 
voters understood his name to be Solomon, and the name was so 
reported to the printer, who so printed it upon two forms of ballots 
which were used at the polls until the mistake was discovered ; 
that there was no voter of the name of Hood in the town except 
the petitioner ; and that he had received and answered letters ad- 
dressed to Solomon D. Hood. 3 Ballots containing the name 
" George Bartholomesz " were counted for George Bartholmesz, 
upon proof that the latter was a regular candidate for his party 
and that his name was by mistake printed " Bartholomesz " on a 
split ticket, upon which it was intended to place the names of the 
regular nominees of that party for representative. 4 Where the 
printed names of the two regular candidates of a party were erased 
from the ballot, and the words " fredrc p. Shaw " were written in 
pencil on the side of the ballot, it was counted for Frederick P. 
Shaw on proof that he was a candidate at the election, and that 
no other person of the name of Frederick Shaw lived in the city, 
although there was a person there named Franklin Shaw. 5 

1 McGibbons v. Walden, L. & R. 289. People, 47 111. 533; " Marres " and 
2 Strobachfl. Herbert, 2 Ells. 5. " Mars" (indicted under one and con- 
3 Hood v. Potter, L. & E,. 217. victed under the other), Commonwealth 
4 Hobbs v. Bartholmesz, id. 182. v. Stone, 103 Mass. 421; " Beckwith " 
5 Shaw v. Buckminster, id. 221. In and " Beckworth," Stewart v. State, 4 
the following cases the names stated Blackf. 171; " Adamson " and " Adan- 
were held to be idem sonantia: " Geuss- son," James v. State, 7 id. 325 ; " Conk- 
ler " and " Geissler," Cleaveland v. Ian" and " Conklin," Cutting v. Conk- 
State, 20 Ind. 444 ; " Kimberling " and ling, 28 111. 508 ; " Anne " and "Anna," 
" Kamberling," 4 Greene (Iowa), 437 ; Kerr v. Swallow, 33 id. 379 ; " Em- 
" Wolley " and " Woolley," 21 Ark. 462 ; monds " and " Emmens," Lyon v. Kain, 
"St. Clair" and "Sinclair," Rivard »: 36 id. 362; " Aymer " and " Ay mar," 
Gardner, 39 111. 125; " McDonald " and Quigley v. People, 2 Scam. 301; "Du- 
" McDonnell" (indicted in one name gal " and " Dugald," also " McGinnis " 
and tried in the other), McDonald v. and " Mclnnis," Barnes tj. People, 18 

30 



466 



§ 550. Where the intention of the voter is clearly ascertaina- 
ble from the ballot, with the aid of extrinsic facts, of a public 
nature, connected with the election, the law requires his vote to 
be counted. 1 Where there is a doubt, as to the person for whom 
certain ballots were intended, on account of the misspelling of 
the surname, or the addition of different, or erroneous, christian 
names, facts and circumstances of public notoriety, connected with 
the election and the different candidates, are competent evidence 
to show for whom the ballots were intended. Upon this principle 



111. 52; "Conly" and Connolly," Fletcher 
v. Conly, 2 Greene (Iowa), 88; " Cham- 
bers" and "Chamberlains" (by a di- 
vided court), State v. Verden, 24 Iowa, 
126 ; " Conavay " and " Conaway," Con- 
away v. Hays, 7 Blackf. 159; "Corn" 
and " Conn," Moore v. Anderson, 8 Ind. 
19; "Penryn" and " Pennyrine," El- 
liott v. Knott, 14 Md. 121 ; " Japheth " 
and " Japhath," Mortons. McClure, 22 
111. 257 ; " Philp " and "Phillip," Taylor. 
v. Rogers, Minor, 197; "Isaiah" and 
"Isah," Ellis v. Merriman, 5 B. Monr. 
296 ; " Colburn " and " Coburn," Coburn 
v. Bancroft, 23 Pick. 57; "Kiah" and 
" Currier," Tibbets v. Kiah, 2 N. H. 
557; "Augustine" and " Augustina," 
Commonwealth v. Desmarteau, 16 Gray, 
1 ; " Chareston, " and " Charleston," Al- 
vord v. Moffat, 10 Ind. 366. 

In Ruddell v. Mozer, 1 Ark. 503, it 
was held by the supreme court of the 
state of Arkansas that, " where the de- 
fendants were named * John Mozer and 
Barnett Mozer ' in the summons, and in 
the agreement offered in evidence ' John 
Mouseur and Barnett Mosuser,' and 
their signatures to the agreement were 
' John Mouseuer and Barnett Mouseur,' 
the names were within the rule of idem 
sonaris." In Rector v. Taylor, 12 Ark. 
132, the court used this language : 
" The names ' Gardiner ' and ' Gardner ' 
are not variant in sound ; the letter ' i ' 
in the one name makes no necessary 
difference in sound. So we held ' Gra- 
vaier ' and ; Gravier ' to be the same 
name." In Beneux v. The State, 20 Ark. 



97, it was held, that "Bennaux" and 
"Beneux" were the same name. The 
only candidates, for a particular office, 
having been E. E. Clark and William E. 
Robinson, ballots inscribed respectively 
"Robertson," W. E. Robso, W. E. 
Robers, and Robin — , are to be counted 
for William E. Robinson. Clark v. Rob- 
inson, 88 111. 498. 

Where, in a case of contested election, 
the proof showed that there was only 
one candidate, of a particular surname, 
as Newell, and that his full name was 
Frank E. Newell, ballots for "Newell," 
"Frank Newell," "F. E. Newell," " F. 
Newell," "Nuel," and "Nooel," were 
counted for Frank E. Newell ; but bal- 
lots for "Nail," "Null," were not so 
counted. In like manner ballots for 
" Nuton," or " Newten," were counted for 
Newton ; but those for " New," "Newt," 
"Newto," "Newn," or " Neto," were 
not so counted. Newton v. Newell, 26 
Minn. 529. Through a mistake of the 
deputy county clerk five hundred and 
seventy-six votes, cast for the con- 
testant and returned for him by the 
precinct officers, were entered in the 
transcripts of the precinct returns, which 
were forwarded to the secretary of 
state, as for " Rott," instead of Root. 
These votes, if allowed, gave the con- 
testant a majority of two hundred and 
forty-six. The committee held that they 
should have been counted for the con- 
testant. Root v. Adams. C. & H. 271. 

1 State v. Dinsmore, 5 Neb. 145. 



467 

the supreme court of Wisconsin has held the following facts to be 
competent evidence : that, before the election, it was announced 
to the electors of the county, in all the newspapers printed in 
the county, that George B. Ely and Matthew H. Carpenter 
were candidates for the office of district attorney of the county ; 
that there was, at the time, no lawyer in the county, eligi- 
ble to the office of district attorney, of the name of George B. 
Ela, Ely Ely, or Ely, except the respondent ; that there was no 
lawyer in the county of the name of D. M. Carpenter, M. D. Car- 
penter, or M. T. Carpenter, or whose surname was Carpenter, 
except the relator ; that there were no votes cast at the election, 
in the county, for any candidate of the name of Ely, or Carpenter, 
except for the office of district attorney ; and that both the relator 
and respondent were, at that time, practicing attorneys in the 
county and eligible to the office. 1 

.§ 551. Under a statute, providing that " the elector, on receiving 
the ballot paper, shall forthwith proceed into one of the compart- 
ments of the polling station, and there mark his ballot paper, 
making a cross, with a pencil, on any part of the ballot paper within 
the division (or, if there be more than one to be elected, within the 
divisions) containing the name (or names) of the candidate (or 
candidates) for whom he intends to vote, and shall then fold up 
such ballot paper, so that the initials, on the back, can be seen, 
without opening it, and hand it to the deputy returning officer," 2 
ballots containing two crosses, one on the line above the first 
name, and one on the line above the second name, are valid for 
the two first named candidates ; and those containing two crosses, 
one on the line above the first name, and one on the line separating 
the second and third divisions, are valid for the first named can- 
didate. 3 It has been held, in Massachusetts, that where there 
is such ambiguity, in the writing, or printing, of the name of the 
person voted for, or of the office for which he is a candidate, that 
it is impossible to determine, from the ballot itself, the name 
of the person intended to be voted for, or the office which the 
voter intended him to fill, the ballot must be rejected, and no 
extrinsic evidence can be heard to supply the defect. 4 A ballot 

1 Attorney-General v. Ely, 4 "Wis. 420. 3 Jenkins v. Brecken, 7 S. C. Canada, 

2 Stat. Dominion, 41 Vict. c. 6, s. 45. 247. 

4 Boynton v, Loring, 1 Ells. 346. 



468 

bearing the name W. E. Robinson, in print, and the name Clark, 
in writing, with the printed words, " For clerk of the circuit court," 
erased, is not to be counted for any candidate. 1 A ballot headed, 
" For congress, Francis P. Blair," and containing the names of 
candidates for the senate and house of representatives of the state 
legislature, the names of the latter being preceded by the words, 
" For representatives for congress," in large letters, was held to have 
been undoubtedly intended for Blair, and was counted for him. 3 
§ 552. Where but one person can be elected to an office, and 
three persons are named on a ballot, the ballot is void. 3 , But a 
ballot containing the names of two candidates for one office, 
although bad as to both, is not necessarily bad as to candidates 
for other offices. 4 Where the representatives were chosen in 
separate districts, a ballot containing five names, including that 
of the contestant, with no other designation than " for congress," 
was held by the committee to be illegal and void. 5 While a ballot, 
containing the names of two candidates for the same office, is bad 
as to both, it cannot be rejected, as to candidates for other offices, 
duly named on the ballot, in the absence of a statutory require- 
ment to that effect. 6 Under a statutory provision that, " if any 
ticket shall contain the names of more persons, for any office, than 
such elector had a right to vote for, such ballot shall not be 
counted,"' 7 the fact that a ballot contains the names of more per- 
sons, for constable, than can be voted for, is no ground for reject- 
ing it as a ballot for assessor. 8 A statutory requirement that, " if 
a ballot is found to contain a greater number of names, for any one 
office, than the number of persons required to fill the said office, 
the said ballot shall be considered void, as to all the names desig- 
nated to fill such office, but no further," 9 is peremptory. When- 
ever the fact of the excess of names exists, the ballot is, pro tanto, 
void and cannot be counted. The statute leaves no room for any 
speculation, or conjecture, as to the intention of the voter. As to 
the office so voted for the ballot must be rejected. 1 ° When a ballot 
contains the names of two candidates for one office, it is not com- 

1 Clark v. Robinson, 88 111. 498. "Attorney-General v. Ely, 4 Wis. 420. 

Q Blair v. Barrett, 1 Bart. 308. 7 Code Miss. 1880, s. 136. 

3 People i). Ames, 19 How. Pr. 551; 8 Perkins v. Carraway, 59 Miss. 222. 
Turner v. Baylies, C. & H. 234. 9 Gen. Stat. Minn. 1878, c. 1, s. 19. 

4 Attorney-General v. Ely, 4 Wis. 420. ]0 Newton v. Newell, 26 Minn. 529. 

5 Reed v. Cosden, C. & H. 353. 



4:69 

petent, on the trial of an information in the nature of a quo warranto 
to determine the title to the office, to show that the elector, who 
deposited the ballot, intended to vote for one of the persons named. 
The voter's intention cannot be shown to have been opposed, or 
hostile, to the ballot deposited by him. 1 If a statute, prohibiting 
the electors from voting for more than two-thirds of the whole 
number of aldermen to be chosen, be repugnant to a constitutional 
provision, that the qualified voters " shall be entitled to vote * 
for all officers, that now are, or hereafter may be, elective by the 
people," its unconstitutionality will not affect the validity of an 
election held in the manner prescribed in the statute. 3 

§ 553. If the name of the candidate and the designation of the 
office are repeated, on a ballot, the ballot is not, for that reason, 
to be rejected, but should be counted, as one vote, for the person 
named. 3 The contestant insisted that, at one precinct, a single 
ballot, containing three names, was taken from the congressional 
box and was counted as three votes. The majority of the com- 
mittee were not satisfied with the proof that this ballot was counted 
as three votes, or even counted at all, and held that it should have 
been counted as one, and not as three. The minority of the com- 
mittee found that the ballot was counted as three, and were of the 
opinion that it should not have been counted at all. The house 
sustained the report of the committee. 4 

§ 554. Suppose three persons to be voted for, when only two 
can be elected. What is the choice of the elector in such a case ? 
It is manifestly impossible to determine. The insertion in the 
ballot of a single name more than ought to be on it renders it as 
uncertain as though twenty were inserted. The result is that such 
a ballot is void for uncertainty. It fails to express the choice of 
the elector, and consequently cannot be counted as a vote. It is 
true that such a ballot furnishes evidence that there was an elector 
present at the election who attempted to vote. But that is not 
sufficient. The majority required to elect is not of those who vote 
and attempt to vote ; but it is a majority of the legal votes. And, 
in order to be counted as a vote, the ballot must express intelligi- 
bly the choice of the voter respecting the matter to be voted on. 
But suppose it be proved that one of the three persons named on 

1 People v. Seaman, 5 Denio, 409. 3 People v. Holden, 28 Cal. 133. 

2 People v. Kenney, 96 N. Y. 294. 4 Washburn v. Kipley, C. & H. 679. 



470 

the ballot was ineligible. Is the ballot good for the other two ? 
It cannot be assumed that, if the voter had known he could only 
vote for two, he would have voted for the two who were eligible. 
The presumption is that he supposed the first to be eligible also, 
and would have been as likely to vote for him as for either of the 
others. If he had been informed both of the ineligibility of the 
one, and of the fact that only two could be elected, it might not 
then be unreasonable to suppose that he would have voted for the 
two who were eligible. But even when the third person voted for 
is a fictitious person, and this appears on the face of the ballot, or 
the proof shows that he was ineligible, and was known to the voter 
to be ineligible, still the vote is not one which the canvassers 
are entitled to count. 1 

§ 555. The state of Delaware being entitled to one representa- 
tive in congress, it was required by the statute of that state that 
every person, offering to vote, should " deliver, in writing, on one 
piece of paper, the names of two persons, inhabitants of the state, 
one of whom at least should not be an inhabitant of the same 
county with himself." It was held by the house that this law was 
constitutional, and that ballots containing only one name, and 
those containing the names of two persons, inhabitants of the 
county in which the election was held, were to be rejected. 2 

§ 556. In England the ineligibility of the majority candidate 
secures the office to the eligible candidate having the next highest 
number of votes. 3 And although notice of the ineligibility of a 
candidate be not given until after the commencement of the elec- 
tion, all the votes given for him, after the notice, are thrown away, 
and the candidate having the greatest number of legal votes is 

1 State v. Tierney, 23 Wis. 430. cudbright, 1 Luders, 72 ; Radnorshire, 

2 Latimer v. Patton, C. & H. 69. 1 Peck, 496; Leominster, 1 C. & D. 
3 Heywood, County Elections, 535; 12; Grant, Corp. 109, 208; Arnold, 

Male, Elections, 336 ; Rex v. Hawkins, Corp. 141 ; Rex v. Blissel, Heywood, 

10 East, 210 ; Claridge v. Evelyn, 5 B. Elections, 533 ; Regina v. Coaks, 28 Eng. 

& A. 8 ; Clerke, Elections, 156 ; Rose, L. & E. 307 ; Oldknow v. Wainright, 2 

Elections, 256 ; Regina v. Boscawen, Burr, 1017 ; Willcock, Corp. 215 ; Regina 

Cowp. 537 ; Rex v. Withers, id.; Taylor v. Hiomes, 7 A. & E. 960 ; Regina -o. 

v. Mayor, id.; Rex v. Monday, id.; Rex Pancras, 7 E. & B. 954 ; Gosling fl.Ve ley, 

v. Parry, 14 East, 549 ; Rex v. Bridge, 1 7 Q. B. 437 ; Cushing's Lex Pari. ss". 157 

M. & S. 76 ; Fife, 1 Luders, 435 ; Cock- to 180 ; Wilson, Dig. Pari. Law, 107- 

ermouth, 18 Journ. 673; Flintshire, 1 114; Rex v. Coe, Heywood, 361 ; Galway 

Peck, 526 ; Second Southwark, Clifford, cases, 2 Moak, 714 ; King v. Hawkins, 10 

130 ; Second Canterbury, id. 353 ; Kirk- East, 210. 



471 

elected. 1 A minority candidate is entitled to the seat, when the 
majority candidate is unseated for disqualification, which existed 
before the election, and was brought to the notice of the electors 
before they voted for him. 2 The rule that votes, given for a dis- 
qualified candidate, after notice to the electors of the disqualifica- 
tion, are to be considered as thrown away, applies, in England, to 
corporation elections, and a qualified candidate, for whom a smaller 
number of votes is given, is entitled to be returned as elected. 3 
On an information in the nature of a quo warranto, filed in 1808, 
calling upon the defendant to show by what authority he claimed 
to be an alderman of the borough of Saltash, it appeared that the 
defendant and another person were candidates, at the election in 
controversy ; that forty electors were present ; that, after two 
electors had voted for each candidate, the candidates were asked 
whether they had previously taken the sacrament ; that the de- 
fendant answered in the negative, and the opposing candidate in 
the affirmative ; whereupon notice of the defendant's ineligibility 
was publicly given to the electors, and was heard by all who after- 
wards voted for the defendant, being twenty in number, except 
two, or three ; and that afterwards sixteen voted for the other can- 
didate. It was held that all the votes given for the defendant, 
after the notice, were thrown away ; that the other candidate, hav- 
ing the greatest number of legal votes, was duly elected, and that, 
the presumption being that every person had conformed to the law, 
until something appeared to rebut the presumption, it was to be 
taken that the other candidate who affirmed his qualification, which 
was not negatived by the jury, was duly qualified. 4 But while a 
person who has not taken the sacrament, according to the rites of 
the church of England, within a year before his election to a cor- 
porate office, is disqualified, 5 and, if notice of such disqualification 
be given to the voters, at the time of the election, all votes subse- 
quently given to such disqualified candidate are thrown away, 
and any candidate, having the most legal votes, though fewer than 
those of the disqualified candidate, is duly elected, and entitled to 
be sworn in, still, until he is sworn in, the office is not " legally filled 

1 Hawkins v. Kegem, 2 Dow. 124. In 2 French v. Nolan, 6 Ir. K. C. L. 464. 

this case the judgment of the court of 3 Regina v. Coaks, 2 C. L. 947. 

king's bench was affirmed by the house 4 Rex v. Hawkins, 10 East, 211. 

of lords 5 13 Car. 2, St. 2, c. 1, s. 12. 



472 

up and enjoyed by him," within the exception in the annual in- 
demnity act. And, therefore, if the disqualified person, who had 
the greatest number of votes, be sworn into the office and after- 
wards qualify himself, by taking the sacrament, within the time 
allowed by the indemnity act, he is thereby recapacitated, and 
relieved of all disability, and his title to the office protected, the 
office not having been a]ready vacated by judgment, or " legally 
filled up and enjoyed," by another person. 1 

§ 557. But in England votes given for a candidate, before notice 
of his ineligibility, are not thrown away, so as to authorize the 
returning officer to return another candidate, who is in a minority. 2 
Proof of the voter's knowledge of a fact, which, by construction of 
law, operates as a disqualification of a candidate, for whom he 
votes, does not suffice to cause his vote to be thrown away; but 
it is necessary to show that he knew that the fact disqualified the 
candidate. 3 Knowledge of the fact which creates a legal disquali- 
fication does not necessarily involve knowledge that the candidate 
is legally disqualified. 4 By the set of a burgh, in Scotland, the 
council was ordered to confirm the election of a dean of guild by 
the guildry, and, if the dean elect did not produce evidence of his 
qualification for the office, the council was required to proceed to 
elect a dean. The council having found the candidate elected by 
the majority disqualified, and declared the other to have been 
elected by the guildry, it was held that this was not a lawful exer- 
cise of their right, and the election was declared null. 5 At an 
election of aldermen, for a ward in the city of Dublin, the out- 
going alderman, who was a candidate for re-election, presided and 
acted as returning officer. He was elected by a majority of twenty- 
nine votes. Fifty-six electors voted for him, after notice of his 
disqualification had been given. But it had been the undisputed 
usage, for many years, for the outgoing alderman to preside at 
such elections, though himself a candidate. Upon a petition, by 
the unsuccessful candidate, praying that he might be declared to 
have been duly elected, it was held that the election was void, for 
the reason that the respondent, beings interested in the result, as 

1 Rex v. Parry, 14 East, 549. 3 Eegina 0. Mayor, 9 B. & S. 683. 

2 Rex v. Bridge, 1 M. & S. 76 ; See also 4 lb. 

Rex v. Parry, 14 East, 549 ; Hawkins v. 5 Kay v. Magistrates, 2 Deas. & And. 

Reginam, 2 Dow. 124 ; 10 East, 211 ; Kay 363. 
v. Magistrates, 5 Fac. Dec. 549. 



473 

a candidate, was not qualified to preside, but that, under the cir- 
cumstances, the electors had not such notice of his ineligibility as 
to cause , their votes to be thrown away, with the effect of giving 
the office to his competitor. 1 

§ 558. Ballots cast for ineligible candidates, with notice of their 
ineligibility, are nullities, in the state of Indiana ; and the candi- 
dates receiving the highest number of legal votes, though not a 
majority of the whole, are duly elected. 2 The term eligible relates 
to the capacity of holding, as well as to the capacity of being elected 
to, an office. 3 When a candidate for a county office is ineligible, 
by reason of having already served eight years in a period of twelve, 
the voters of the county are bound to take notice of his ineligibility. 4 
The governor may determine, in opposition to the decision of a 
board of canvassers, the question whether an applicant is entitled 
to receive a commission, where the objection to his right to receive 
it is that he is ineligible to the office, under the state constitution. 
And if the governor shall ascertain that he has commissioned a 
person who is ineligible to the office, he may issue another com- 
mission to the person legally entitled thereto. 5 

§ 559. The English rule, which disregards, as nullities, all votes 
given for candidates known to the electors to be ineligible, and 
awards the office to the eligible candidate having the highest num- 
ber of votes, is not generally adopted in the United States. 6 The 

1 Fanagan v. Kernan, 8 Ir. Law Rep. Cushing, 496, 576 ; Maxwell v. Cannon, 
N. S. 44. Smith, 182 ; Zeigler v. Rice, 2 Bart. 884 ; 

2 Gulick v. New, 14 Ind. 93 ; Dobyns Wallace v. Simpson, id. 731 ; Ramsey 
«. Weaden, 50 id. 298 ; Hadley v. Gut- v. Smith, C. & H. 23 ; Swepston ®. Bar- 
ridge, 58 id. 302 ; Reynolds v. State, 61 ton, 39 Ark. 549 ; Cooley Const. Lim. 
id. 392 ; State v. Johnson, 100 id. 489 ; 620 ; Dillon Mimic. Corp. 196 (135), and 
State v. Shay, 101 id. 36 ; Jeffries v. cases cited ; People v. Morliter, 23 Mich. 
Rowe, 63 id. 592. 341 ; Crawford v. Dunbar, 52 Cal. 37 ; 

3 Carson v. McPhetridge, 15 Ind. 327. State v. Vail, 53 Mo. 97 ; Fish v. Collins, 

4 lb. 21 La. An. 289; Gallatin's case, Taft, 57 ; 

5 Gulick v. New, 14 Ind. 93. Key's case, C. & H. 224 ; Bailey's case, 
Smith v. Brown, 2 Bart. 395 ; McKee id. 411 ; Shields' case, Taft, 138 ; Ab- 

v. Young, id. 422 ; Jones v. Mann, bott's case, id. 338 ; Cannon v. Camp- 
id. 471; Commonwealth v. Cluley, 56 bell, 2 Ells. 604; State v. Tierney, 23 Wis. 
Penn. St. 270 ; Saunders v. Haynes, 13 430 ; Cochran v. Jones, 14 Am. Law Reg. 
Cal. 145 ; State v. Giles, 1 Chand. (Wis.) N. S. 222 ; Bowker's case, L. & R. 282 ; 
112 ; State v. Smith, 14 Wis. 497 ; Corliss' case, 11 R. I. 638 ; Whitman v. 
Opinion Judges, 32 Me. 597 ; State v. Meloney, 10 Cal. 38 ; State v. Swearingen, 
Anderson, 1 Cox, 318 ; State v. Bool, 46 12 Geo. 23 ; State v. Gastinel, 20 La. An. 
Mo. 528 ; People v. Clute, 50 N. Y. 541 ; 114 ; Opinion of Judges, 38 Me. 597 ; 



474 



ineligibility of the candidate having the highest number of votes 
does not entitle his nearest competitor to the office. Every ballot, 
which substantially conforms to all the requirements of the statute, 
and does not disclose, upon its face, any fact making it void, such 
as the ineligibility of the person voted for, from which, possibly, 
a knowledge of that fact, on the part of the voter, might be in- 
ferred, and a presumption raised of an intention to waste his vote, 
must be taken as a valid and bona fide expression of the voter's 
choice, in favor of the person therein named for the office desig- 
nated ; such ballot cannot be treated as a nullity. 1 Where a 
majority of the electors vote for an ineligible candidate, the election 
is a nullity, although votes may have been cast for eligible candi- 
dates. The person receiving the highest number of votes, in such 
a case, fails of an election because of his ineligibility. The others 
fail because the majority of the electors express their opinion 
against their election. 2 A person regularly appointed to a public 
office is presumed to have been eligible to such office, in the 
absence of proof to the contrary. 3 

§ 560. Votes cast for a person found ineligible, by reason of 



Yulee v. Mallory, Taft, 143 ; Thomas' 
case, Taft, 275 ; Miller's case, Taft, 285 ; 
Christy v. Wimpey, 2 Bart. 464. 

On the 28th of January, 1843, the 
house of representatives of Massachu- 
setts adopted the following order : 

" That the practice, that has obtained, 
with the senate and house of repre- 
sentatives, when convened together for 
filling certain offices, of rejecting from 
the count ballots cast for ineligible can- 
didates, be referred to the committee on 
elections, with instructions to consider 
and report whether such practice is in 
accordance with the constitution and 
laws." 

The committee submitted the follow- 
ing resolution : 

"Resolved, That it is not in accordance 
with the constitution and laws for the 
two branches of the legislature, when 
determining elections, which they are 
required to make in convention, to reject 
from the count ballots cast for ineligible 
candidates." 

The minority of the committee opposed 
the resolution. The report of the com- 



mittee was ordered to lie upon the table. 
Report of committee, C. S. & J. 496. 
The report of the sub-committee of 
three, in the case of Wallace v. Simpson, 
2 Bart. 731, recognizes the English 
doctrine ; but the case was decided on 
other grounds, and two of the three mem- 
bers of the sub-committee dissented 
from the report on this point. The au- 
thor of the report said, in the house : 

" There is one thing which, perhaps, I 
should have stated to the house, and 
which I state now. The report in this 
case is based upon three propositions. 
The first is this, that when one of two 
candidates is ineligible, the votes given 
for him are of no effect, and the other 
candidate is elected. I desire to state to 
the house that both of my colleagues on 
the committee dissent from the first 
proposition contained in the report, and 
that, so far as anybody is to be bound 
by that proposition, there is no one to 
be bound by it but myself." 

1 Barnum «. Gilman, 27 Minn. 466. 
- Word v. Bartling, 16 Kan. 109. 
3 State v. fling, 29 Minn. 78. 



475 

non-residence, cannot, in the absence of proof that they were cast 
with knowledge of the ineligibility, and with an intention, on the' 
part of the voters, to throw away their votes, be regarded as blanks, 
so as to entitle the candidate receiving the next highest number 
of votes to the office. 1 Where the candidate receiving the largest 
number of votes is ineligible, for a cause which was not known to 
the voters, and which they were not bound to know, such as in- 
fancy, or alienage, the election must be pronounced a failure, and 
another election ordered. 3 If two residents of the election dis- 
trict bear the same name, one being eligible and the other not 
eligible, ballots inscribed with that name, if admitted by the con- 
testant to have been intended for the eligible candidate, will be 
counted for him. 3 A vote for a candidate who is constitutionally 
ineligible is not to be counted, for the purpose of ascertaining the 
whole number of votes cast. 4 

§ 561. A ballot found in the separate box appropriated to the 
ballots cast for representative of the town, in the state legislature, 
inscribed " Representative to congress," and describing the candi- 
date as a resident of a different town, will not be counted to make 
up the whole number of votes cast for representative in the legis- 
lature. 5 A meeting being called and held, for the election of state 
officers, to be voted for, on one ballot, and of a representative in 
congress, to be voted for, on another ballot, the ballots to be 
deposited in separate boxes appropriately labelled, the selectmen 
gave notice that votes found in the wrong box would not be 
counted. It was held that a vote for representative in congress, 
found in the box appropriated to the votes of state officers, was 
properly rejected. 6 

§ 562. A ballot, on which the name of the regular candidate of 
one party for senator was covered by a paster, loosely attached, 
bearing the incomplete name "Jeremiah Cla," the end of the 
paster, evidently containing the last two letters of the name Clark, 
having been torn off, should be counted for Jeremiah Clark, who 
was the regular candidate of the opposing party for that office. 7 
Where on a ballot for state officers, upon w r hich the name of 

1 Hinks v. Jones, L. & E. 27. 5 Edwards' case, C. S. & J. 594. 

2 Dryden v. Swinburne, 20 W. Va. 89. 6 Robinson's case, id. 492. 

3 Pratt's case, C. S. & J. 236. 7 Clark v. Salmon, L. & R. 191. 
4 Slade's case, id. 576. 



4:76 

Salmon was printed, as of the regular democratic candidate for 
senator, the name of Clark, who was the regular republican candi- 
date, was pasted over the name of the candidate for some office 
other than that of senator, leaving the name of Salmon for senator 
undisturbed, there being, on the paster, no designation of the office 
for which Clark was named, the vote could not be counted as a 
vote for Clark for senator, but was to be counted for Salmon. 1 
Where, on a ballot for state officers, containing the printed name 
of Jeremiah Clark, for senator, there was written, in pencil, at 
the bottom, " W. F. Salmon, senator," the name of Clark not being 
erased ; and where a strip was securely attached, by pins, just 
below the name of Clark, on which was printed " For senator 
William F. Salmon," such strip not covering the name of Clark, 
so that on each ballot the names of both candidates for the office 
appeared, the ballots could not be counted for either candidate. 2 
Where pencil lines, although faint, are drawn over the surname 
of a candidate, upon a ballot, leaving the rest of the name un- 
marked, the ballot cannot be counted for such candidate. 3 A 
cancellation by a pen or pencil, leaving the name still legible, is 
prima facie sufficient. 4 

§ 563. The provision of the statute 5 of Massachusetts that 
officers shall be voted for, on one ballot, is directory ; and where 
a voter took the regular ballot of one party, and erased from it all 
the names, except that of the candidate for governor, and then 
took the regular ballot of the opposing party, and erased from it 
the name of the candidate for governor, and, placing the two papers 
in an envelope, deposited them in the ballot-box, the vote for 
senator, on one of the papers, was counted. 6 A piece of paper, 
having the same name written upon it twice, constituting two 
ballots not separated, is, it seems, to be considered and counted 
as one ballot. 7 Where three representatives were to be elected, 
and votes for governor, lieutenant-governor, senators, and repre- 
sentatives, properly designated, were deposited in the ballot-box, 
in envelopes, in compliance with the statute, 8 but, in one envelope, 
a vote for governor, lieutenant-governor, senators, and two repre- 

1 Clark v. Salmon, L. & E. 191. 5 Pub. Stat. Mass. c. 7, s. 1. 

2 lb. 6 Whitaker v. Oummings, L. & E. 360. 

3 Shaw v. Buckminster, L. & E. 221. 7 McFarland v. Dench, C. S. & J. 26. 

4 Adams v. Wilson, C. & H. 373. s Stat. Mass. 1851, c. 226. 



4:77 

sentatives, was upon one piece of paper, and a vote for one 
representative upon another, and in another envelope a vote for 
three representatives was on a separate piece of paper, it was held 
that the contents of each of these envelopes were properly counted, 
as one ballot, containing votes for governor, lieutenant-governor, 
senators, and three representatives. 1 A ballot made up of parts 
of two different ballots, pasted together, is not to be rejected. 3 

§ 564:. A statutory declaration that " whenever any ballot, with 
a certain designated heading, shall contain, printed thereon in the 
place of another, any name not found on the regular ballot having 
such heading, such name, so found, shall be regarded, by the 
judges of election, as having been placed there for the purpose of 
fraud, and said ballot shall not count for the name so found," 3 
does not exclude from the count names of candidates for county 
offices, nominated by a local party organization, and printed on a 
ticket properly designated as a county ticket, although such 
county ticket be printed on, and made part of, a ballot which con- 
tains, also, the names of candidates, nominated by another party, 
for state and district offices, with words, at the head thereof, 
intended to distinguish it from other tickets for state and district 
offices. 4 The statute contained the following provision : " Each 
ballot may bear a plain written, or printed, caption thereon, com- 
posed of not more than three words, expressing its political charac- 
ter, but, on all such ballots, the said caption, or head lines, shall not, 
in any manner, be designed to mislead the voter, as to the name, or 
names, thereunder. Any ballot, not conforming to the provisions 
of this act, shall be considered fraudulent, and the same shall not 
be counted." 5 An election was contested, on the ground that each 
of the ballots cast for the contestee bore the caption, " Republican, 
Independent, Greenback," which did not express its political 
character, but was designed to mislead the voter. It was held, by 
the supreme court of the state, that the design of the statute was 
to prohibit the use of any words, in the caption of the ballot, 
which did not truly indicate the political character of the persons 
voted for, and that the question whether the words used on these 
ballots came within the interdict of the statute was one of fact. 6 

Abbott's case, C. S. & J. 648. 4 Boiler v. Truesdale, 26 Ohio St. 586. 

2 Sessinghaus v. Frost, 2 Ells. 380. 5 Stat. Mo. 1865, p. 51, s. 1. 

3 71 Ohio L. 31. 6 Turner v. Drake, 71 Mo. 285. 



478 

A ticket, headed " Chronicle Selected Ticket," was not " intended to 
deceive the voter." 1 A ticket headed " Greenback Labor Ticket," 
or " Hancock Independent Ticket," was not " intended to deceive 
the voter." 3 

§ 565. When several councilnien, or school directors, are to be 
elected, for different terms, ballots which do not specify the terms, 
for which they are intended, must be rejected. 3 It was provided, 
by act of parliament, as follows : " Every voter, entitled to vote 
in the election of councillors, may vote for any number of persons, 
not exceeding the number of councillors then to be chosen, by 
delivering- to the mayor and assessors, or other presiding officer, 
as hereinafter mentioned, a voting paper," 4 and " if any extraor- 
dinary vacancy shall be occasioned, in the office of councillor, 
auditor, or assessor, of any borough, the burgesses entitled to 
vote shall * elect, from the persons qualified to be councillors, 
another burgess to supply such vacancy." 5 An election was held 
to fill one extraordinary and three ordinary vacancies, in the coun- 
cil of a borough. Two sets of candidates (each numbering four) 
were proposed. The ballots for the successful candidates did not 
distinguish the vacancy, which any one was intended to fill. On 
a motion for a quo warranto information, against one of the four 
so elected, it was held, by the court of queen's bench, that the 
election was void. 6 Under a statute, providing that the qualified 
voters shall " elect, by ballot, three school directors, for such sub- 
district ; of those so elected the person receiving the highest 
number of votes shall hold his office for three years ; the person 
receiving the next highest number shall hold the office for two 
years ; and the person receiving the next highest number shall 
hold the office for one year," 7 when one director for the full term 
of three years, and one for an unexpired term of two years, are 
voted for, a designation, by the electors, upon the ballots, of the 
terms of the persons voted for, is authorized by law, and such 
designation cannot be disregarded, by the officer holding the 
election. 8 

1 Sessinghaus v. Frost, 2 Ells. 380. 5 5 & 6 W. 4, c. 76, s. 47. 

2 lb. 6 Regina v. Rowley, 3 Q. B. 143. 
3 Milligan's appeal, 96 Penn. St. 222; 7 Stat Ohio, 1853, c. 430, s. 2. 

Gilliland's case, id. 224. 8 State v. Chambers, 20 Ohio St. 336. 

4 5&6 W. 4, c. 76, s. 32. 



4:79 

§ 566. Under a statute, declaring that " no misnomer, or inac- 
curate description, of any person, body corporate, or place, named 
in any sqhedule to this act annexed, or in any roll, list, notice, or 
voting paper, required by this act, shall hinder the full operation 
of this act, with respect to such person, body corporate, or place, 
provided that the description of such person, body corporate, or 
place, be such as to be commonly understood," 1 votes given inten- 
tionally in the names by which they have been erroneously 
described, through mistake, on the burgess-roll, are legal votes ; 
the nisnomer is cured by the statute. If Joseph Cowell, a person 
entitled to vote at municipal elections, be, by mistake, registered, 
on the burgess-roll, as James Cowell, and purposely vote as James 
Cowell, his vote will not be excluded, on an information in the 
nature of a quo warranto. 3 

§ 567. A ballot enclosed in a colored envelope, not of the kind 
prescribed by the statute, and deposited in a ballot-box, without 
challenge, or objection, from the election officers, or notice that it 
was not of the proper kind, will be counted in Massachusetts, 
although the statute 3 prohibits the use, at the polls, of any enve- 
lope, other than that prescribed. 4 The statute contained the 
following provision : " Self-sealing envelopes, of uniform size and 
color, having the emblematic seal of the commonwealth, shall be 
furnished, at the expense of the state (as heretofore, in accord- 
ance with the provisions of law passed in 1851), to all persons 
who may desire, at any election hereinbefore specified, to deposit 
their ballots therein, and no other envelopes shall be used at the 
polls." It was held by the house of representatives of Massachu- 
setts, that this provision, being prohibitory in expression and 
effect, and addressed to the voters, as well as the officers of elec- 
tion, was mandatory, and that ballots enclosed in envelopes, not 
bearing the seal of the commonwealth, could not be counted. 5 
But the senate of Massachusetts construed this statutory provi- 
sion as directory, and not mandatory, on the ground that, while it 
forbade the use of different envelopes, it did not forbid the count- 
ing of ballots contained in different envelopes, if such were used. 6 

1 5 and 6 W. 4, c. 76, s. 142. 4 Whitaker v. Cummings, L. & R. 360. 

2 Regina v. Thwaites, 1 C. L. 67. 5 Taft v. Cole, id. 45. 

3 Pub. Stat. Mass. c. 7. s. 4. •Whitaker v. Cummings, id. 360. 



CHAPTER XXV. 



PRECINCT CANVASS— Continued. 



568 



569 



570 



1. Rejection of votes, by precinct 

canvassers 

2. Refusal to permit inspection of 

poll-books or ballots 

3. Requirements that votes shall be 

" cast up and set down in writ- 
ing " .... 

4. Whole number of votes cast ; ma- 

jority; plurality; tie vote 571-576 

5. Unauthorized persons taking part 

in canvass .... 577 

6. Abstracts of precinct canvassers 578 

7. Determination of result ; certifi- 

cate ; proclamation . 579, 580 

8. Returns. 

(1) Form ; substance ; signature ; 

record . . . 581-583 

(2) Returns for different candi- 

dates not made on separate 
sheets .... 584 

(3) Irregularity, mistake, or neg- 

ligence .... 585 



Secs. Secs. 

(4) Failure to make return . 586 

(5) Transmittal of forged returns 587 

(6) Failure to transmit returns 
within prescribed time . 588 

(7) Failure to transmit by lawful 
messenger .... 589 

9. Amended and supplemental re- 
turns . . . • 590,591 

10. Poll-books and tally-sheets 592-595 

11. Fraud, in canvass or return, by 
precinct officers . . . 596 

12. Failure to make proper disposi- 
tion of poll-books, registration 
lists, assessment lists, tally- 
sheets, ballots, or ballot-boxes 597 

13. Election of excessive or insuffi- 
cient number of officers . 598 

14. More votes than voters . . 599 

15. Disregard of mandatory or di- 
rectory requirements . . 600 



§ 568. At an election for county officers, four persons were 
permitted to deposit ballots, who were not registered, and were 
subsequently, before the whole vote was counted, declared by the 
election officers not to be qualified voters. They were sworn, as 
to the character of the ballots, which they had deposited, and four 
ballots were destroyed, in accordance with their statements, with- 
out, however, changing the result of the election. The election 
officers certified that certain persons received the highest number 
of votes. The board of supervisors set the election aside, on the 
ground of the irregularity mentioned, no objection being made to 
such action of the board, by the parties who were returned, as 
having received the highest number of votes, although some were 
present. The board of supervisors ordered another election. 
Subsequently the parties so returned petitioned the circuit court 
for a writ of certiorari, to revise the proceedings of the board of 



480 



481 

supervisors. It was held that there was no irregularity, in fact or 
law, sufficient to invalidate the election ; that, under the constitu- 
tional provision, giving the circuit court " supervision and control 
of all proceedings, before justices and other inferior tribunals, by 
mandamus, prohibition, or certiorari," the circuit court had juris- 
diction of the case, and, notwithstanding the fact that the order 
of the board of supervisors, setting aside the election, was made 
without objection, it was competent for the court to supervise the 
proceedings by certiorari. x In England the power of deciding on 
the validity of votes is vested in the returning officer, and cannot 
be delegated. 2 He is required to reject all ballot papers which 
are not endorsed with the official mark, all those on which votes 
are given for more candidates than the elector has a right to vote 
for, and all those on which anything, except the number on the 
back, is written, or marked, by which the voter can be identified. 3 
He will also reject any ballot papers, which are unmarked, or 
void for uncertainty. 4 

§ 569. Where the township clerk refused to permit the friends 
of the contestant to examine the retained poll-book and ballots, as 
the law required, and the poll-book, returned to the clerk of the 
court, was afterwards stolen, it was held that the return of the 
precinct might be rejected. And a refusal, by the judges, to per- 
mit friends of the contestant to be present, while the votes were 
received, as required by law, was held to be a good ground for the 
rejection of the vote of the precinct. 5 

§ 570. Statutes requiring the number of votes to be stated in 
words are directory. 6 The contestant objected to the return of a 
precinct, because the votes were not cast up and set down in writ- 
ing, as the law directed, but were stated in figures only. The 
objection was overruled, on the ground that, although the votes 
were set down in figures only, for Rufus Easton 16 and for John 
Scott 107, while the law provided that the number of votes given 
to each person should be set down in writing, at the foot of the 
poll-book, so that there was not a literal compliance with the terms 
of the act, yet the variance related only to form, and no ambiguity, 
or injury, resulted therefrom. 7 

1 Burke v. Supervisors, 4 West Va. 371. 6 Delano v. Morgan, 2 Bart. 168. 

2 35 & 36 Vict. c. 33, rule 35. "Irwin v. Lowe, 89 Ind. 540. 

3 Id. s. 2. 7 Easton v. Scott, C. & H. 286. 

4 Id. rule 36. 

31 



482 

§ 571. " Unless the law under which the election is held expressly 
requires more, a plurality of the votes cast will be sufficient to elect, 
notwithstanding these may constitute but a small portion of those 
who are entitled to vote." 1 Under a constitution declaring that 
" no county seat shall be removed until the point, to which it is 
proposed to be removed, shall be fixed by law, and a majority 
of the voters of the county shall have voted in favor of its removal 
to such point," 2 a majority of the legal votes actually cast is suffi- 
cient. 3 Under laws making the votes of a majority of the electors 
essential to an election, if several persons are to be chosen and 
the election is to be made by a general ticket, each piece of paper 
given in is to be counted as a ballot, whether it have on it the 
requisite number of names, or not. 4 Where the record of a town 
meeting is defective, in not stating the whole number of ballots 
given in, at an election, the defect may be supplied by evidence. 5 
But if the whole number of votes cast cannot be ascertained, either 
by the record, or by the evidence, the election will be void for 
uncertainty. 6 If a majority of the voters present dissent from 
the election of a candidate, but vote for no one else, the election 
of the candidate, by the minority, will be valid. 7 

§ 572. Where the charter of a municipal corporation provides 
that the incorporation shall include a designated number of prin- 
cipal burgesses, and empowers the mayor and aldermen for the 
time being, or the greater part of them, to choose or name four 
of the burgesses or inhabitants, "out of which four, so to be 
named and chosen, the mayor, aldermen, bailiffs, principal bur- 
gesses, and other burgesses, and inhabitants, for the time being 
(they being also for that purpose there and upon the same day 
congregated and assembled together), or the greater part of them, 
as should be so congregated and assembled, might have power and 
authority, by the greater part of the voices of them so assembled 
together, to choose and make one to be the mayor," the election 
of a mayor, by a majority of the whole elective body, taken col- 
lectively, will be void, if a majority of the definite body of burgesses 

^ugustin v. Eggleston, 12 La. An. 3 People v. Warfield, 20 111. 159. 

366 ; Gillespie v. Palmer, 20 Wis. 544 ; 4 Goodwin's case, C. S. & J. 167. 

State v. Mayor, 37 Mo. 270 ; State v. 6 Carpenter's case, id. 399. 

Binder, 38 Mo. 450 ; Cooley, Const. Lim. 6 Thayer's case, id. 395 ; Ware's case, 

619. id. 70. 

2 Const. 111. 1847, art. 7, s. 5. 7 Oldknowfl.Wainwright, 1 W. Bl. 229. 



483 

be not present, at the time of the election ; but a majority of the 
indefinite body is not necessary. x But under a charter of a munic- 
ipal corporation providing that, " when any one, or more, of the 
capital burgesses, for the time being, shall' die, or dwell without 
the borough, or be removed from his office, it shall be lawful for 
the other capital burgesses, at that time surviving and remaining, 
or the greater part of the same, of whom the mayor is to be one, 
to elect another, or others, of the burgesses of the said borough, 
into the place, or places, of the capital burgess, or burgesses," who 
shall die, or remove, a majority of the entire body of capital bur- 
gesses, and not merely of those then existing, must be present to 
make a good election. The words " then surviving and remaining " 
mean " for the time being." 2 

§ 573. Under a constitution declaring that " no county seat 
shall be removed until the point, to which it is proposed to be 
removed, shall be fixed by law, and a majority of the voters of the 
county shall have voted in favor of its removal to such point," a 
majority of the votes cast on the question of removal is sufficient, 
when that is the only question involved in the election ; for it is 
to be presumed that the framers of the constitution intended that 
all the electors should vote, and that the majority of those voting 
should determine the question ; but when votes are cast for public 
officers, at the same election, the votes in favor of removal will 
not be sufficient, unless they equal a majority of the highest number 
of votes cast at the election, whether on the question of removal, 
or for the candidates for any office. 3 The constitution of Kansas 
contained the following clause : " The legislature shall provide for 
organizing new counties, locating county seats, and changing 
county lines; and no county seat shall be changed without the 
consent of a majority of the electors of the county." 4 It was held, 
by the supreme court of Kansas, that when the legislature had 
provided an election, as the means of ascertaining the wishes of 
the electors of a county, in reference to a change of the county 
seat, but had made no provision for a registration, or for any other 
evidence of the number of electors, it might, under the foregoing 
constitutional provision, declare that the place receiving a majority 
of the votes cast should be the county seat ; but that the reason 

1 Rex v. Bower, 2 Dowl. & Ryl. 761. 3 People v. Wiant, 48 111. 263. 

2 Rex v. Devonshire, 1 B. & C. 609. 4 Const. Kan. art. 9, s. 1. 



484 

for such a doctrine would not exist when two, or more, questions 
were submitted, at the same election, and more votes were 
cast upon one question than upon another, for, in that case, the 
highest number cast, upon any question, would, under such a 
constitutional restriction, be evidence of the number of voters ; 
nor, perhaps, in cases where two elections were held so near 
together in time that the difference, in the number of votes cast 
at the two elections, could not reasonably be accounted for, upon 
the theory of a change in the number of electors. 1 

§ 574. A statute of Kansas contained the following provision : 
"Whenever a majority of the persons voting at any election, called 
by the board of county commissioners of any county, have here- 
tofore voted in favor of subscribing stock and issuing bonds to any 
railroad company, or companies, the board of county commis- 
sioners of such county may subscribe to the capital stock of such 
railroad company, or companies, to the amount, and on the con- 
ditions, specified in the orders of such boards of county commis- 
sioners in such cases, and pay such subscriptions, by issuing, to 
each company, bonds of such county, at par, * whether such 
orders and elections, and either of them, have been made in com- 
pliance with the statutes in such cases made and provided, or not, 
or whether the proposition submitted, at the election had, was for 
the subscription of stock and the issuance of bonds to one or more 
railroad companies." 2 It was claimed that the term, "persons 
voting," included both legal and illegal votes, and precluded all 
inquiry into the legality of the election, back of the returns. But 
the supreme court of the state held that the words, " persons 
voting," applied only to legal voters, and that the statute did not 
have the effect to legalize illegal votes, or to authorize a subscrip- 
tion of stock, or issue of bonds, without the vote of a majority of 
the qualified electors of the county voting upon the question. 3 

§ 575. Under a statute making a majority of all the votes cast 
necessary to elect, it is not essential, to the election of a particular 
candidate, that he should receive more votes than one-half of the 
highest number cast for any office, or on any question ; it is suf- 
ficient that he receives a majority of the votes cast for the partic- 
ular office for which he is a candidate. 4 When twenty-one electors 

1 State v. Woodford, 15 Kan. 500. 3 Railroad Co. v. Commissioners, 17 

2 Gen. Stat. Kan. 892. Kan. 29. 

4 People v. Eyder, 16 Barb. 370. 



485 

were present, of whom nine voted for a candidate for town clerk, 
eleven protested against him, without voting for anyone else, and 
one said that he " suspended doing anything," it was held that 
the candidate who received the nine votes was lawfully elected ; 
that the only way to defeat him was to vote for somebody else. 1 

The state constitution contained the following provision : " The 
legislature may, at any time, extend, by law, the right of suffrage 
to persons not herein enumerated ; but no such law shall be in 
force until the same shall have been submitted to a vote of the 
people, at a general election, and approved by a majority of all 
the votes cast at such election." 3 It was held, by the supreme 
court of the state, that the words "approved by a majority of all 
the votes cast at such election," meant " approved by a majority 
of all the votes cast on that subject at such election." 3 

§ 576. Precinct officers of election have no right to decide by 
lot, in case of a tie vote, under statutes which merely authorize 
them to examine the polls and report the legal number of votes 
cast for each candidate. 4 A statute of Alabama, enacted in 1819, 
contained the following clause : " The elections aforesaid shall be 
conducted, by the sheriff and managers appointed, in the same 
manner as heretofore by law directed." 5 The earlier statute con- 
tained the following provision : " But, when two persons shall 
have an equal number of votes, the returning officer shall have 
the casting vote." 6 It was held by a divided court that the act 
of 1819 did not empower the returning officer to give a casting 
vote, when different candidates for the same office received the 
same number of votes; that the term " manner," employed in the 
statute of 1819, did not apply to the act of giving a casting vote; 
and that a vacancy occurred in the office to be filled by executive 
appointment. 7 If an election be reported as resulting in a tie 
vote, and a second election be held, as provided by the state con- 
stitution, the house of representatives of Massachusetts will, upon 

1 Oldknow v. Wainwright, 1 Wm. B. Dent, 9 B. Mon. 526 ; RE. Co. v. David- 
229 ; King v. Withers. H. 8 Geo. 2 ; King son jCounty, 1 Sueed, 692 ; People «. 
v, Boscawen, P. 13 Anne. Warfield, 20 111. 163 ; People v. Wiant, 

2 Const. Wis. art. 3, s. 1. , 48 id. 263. 

3 Gillespie v. Palmer, 20 Wis. 544. See 4 Hammock v. Barnes, 4 Bush, 390. 
also St. Joseph v. Rogers, 16 Wall. 644 ; 5 Stat. Ala. 1819, s. 3. 
Bridgeport v. RE. Co. 15 Conn. 475 ; 6 Stat. Ter. Miss. 1812, s. 5. 

State v. Mayor, 37 Mo. 272 ; Talbot v. 7 State v. Adams, 2 Stew. 231. 



486 

petition, inquire into the first election, and, upon proof that, at 
such election, the petitioner received a plurality of the votes, the • 
second election will be declared invalid and the seat given to the 
petitioner. 1 At an election for mayor, under 3 & 4 Vict. c. 108, 
in case of an equality of votes, the casting vote is to be given, not 
by the mayor, but by the alderman present who shall have been 
elected by the greatest number of votes ; that is, by the greatest 
number of votes recorded in his favor on a contest ; so that an 
alderman, elected after a contest, is to be considered as elected by 
a greater number of votes than an alderman returned for any con- 
stituency, however large, without a contest. 2 If the votes for any 
candidates be equal, so that the addition of one vote would entitle 
either to be declared elected, the returning officer, when a regis- 
tered elector, may, at his discretion, give such additional vote ; 
but he shall not, in any other case, be entitled to vote at an elec- 
tion for which he is returning officer. 3 If the returning officer, in 
case of equal votes, cannot vote, or do not choose to do so, he 
will make a double return. 4 The fact that a township trustee, 
who was a candidate for re-election, and the opposing candidate 
each received an equal number of votes, and the trustee neglected, 
or fraudulently refused, to take the steps required of him, by law, 
in case of a tie vote, did not create a vacancy in the office, or 
authorize the county auditor to make an appointment to fill such 
office. 5 

§ 577. It is a crime, at common law, for a person, who is not an 
officer of election, to assume and undertake falsely and fraudu- 
lently to count the ballots cast at an election. 6 It is the duty of 
the selectmen, in Massachusetts, with the assistance of the town 
clerk, to receive, sort, and count the votes, at an election for repre- 
sentative ; but, if they call in the assistance of other persons, in 
the performance of this duty, the election will not be thereby 
invalidated. 7 The fact that the selectmen of a town, following a 
custom, which had existed for three, or four, years, appointed, as 
tellers, three reputable persons, to assort and count the votes, who 
performed that duty, without being sworn, the selectmen taking 

1 Shaw v. Buckminster, L. & R. 221. 5 State e. McMullen, 46 Ind. 307. 

2 Hall v. Walker, 9 Ir. E. C. L. 66. 6 Commonwealth v. McHale, 97 Perm. 

3 35 & 36 Vict. c. 33, s. 2. St. 397. 

4 Home Office Abst. Ballot Act, s. 44. 7 Henry's case, C. S. & J. 664. 



487 

no part in the count, but simply accepting the result as correct, 
will not invalidate the election or return. 1 Where a candidate, 
without authority, opened some of the ballots, during the canvass, 
but the ' election appeared to have been honestly conducted, the 
court refused to set the election aside. 2 

§ 578. The following was a section of the code of California : 
" When there has been a judicial election, or when there has 
been a general, or special, election, for officers chosen by the 
electors of the state at large, each county clerk, so soon as the 
statement of the vote of his county is made out, and entered upon 
the records of the board of supervisors, must make a certified 
abstract of so much thereof as relates to the votes given for 
persons for offices to be filled at such judicial election (except 
justices of the peace) or at such general, or special, elections." 3 
" The clerk must seal up such abstract, indorse it, " Election 
Returns," and, without delay, transmit it, by mail, to the secretary 
of state." 4 It was also provided, by statute, that a record of the 
proceedings of the board of supervisors should be kept, 5 and that 
the record should be signed by the chairman and clerk of the 
board. 6 It was held, by the supreme court of the state of Cali- 
fornia, that, when the board of supervisors had canvassed the 
returns of an election, and a record of the canvass had been made, 
and authenticated by the signatures of the chairman and clerk of 
the board, a copy of such record was the abstract, which the clerk 
was required to transmit to the secretary of state, and upon which 
the secretary was to act in estimating the number of votes cast, 
in the county, for each person voted for as a representative in 
congress. 7 

§ 579. It is unlawful to delay the public declaration of the result 
of a balloting, in Massachusetts, after the votes have been counted, 
and the result ascertained. 8 As soon as possible, after the count- 
ing is completed, the returning officer is to give public notice of 
the names of the candidates elected, and of the total number of 
votes given for each candidate, whether elected or not. 9 But 
after the result of an election has been declared, it is proper for 

lease's case, L. & R. 374. 6 Pol. Code Cal. s. 4029. 

2 Boileau's case, 2 Pars. 503. 7 Pacheco v. Beck 52 Cal. 3. 

3 Pol. Code Cal. s. 1288. 8 Richardson's case. C. S. & J. 551. 

4 Id. s. 1289. 9 35 & 36 Vict. c. 33, s. 2, and rule 45. 

5 Id. s. 4030. 



4S8 

the selectmen to add to the whole number of votes one that has 
accidently escaped notice, and, thereupon, to make a new declara- 
tion, although the result of the election is thereby changed. 1 
Under a statutory provision that " the mayor and assessors shall 
examine the voting papers, so delivered as aforesaid, for the pur- 
pose of ascertaining which of the several persons voted for are 
elected ; * and the mayor shaH publish a list of the names 
of the persons so elected, not later than two of the clock, in the 
afternoon of the day next but one following the day of such elec- 
tion, unless such day be Sunday, and then on the Monday follow- 
ing," 2 a declaration of the result having been published before 
two of the clock, in the afternoon of the next day but one after 
the election, which showed that P. was elected councillor, after 
two of the clock, upon the discovery of a supposed error in count- 
ing the votes, a second declaration was published, showing the 
election of R. instead of P. on an application by P. for a man- 
damus, to compel the mayor and council to permit him to act, it 
was held that " the office was not full of R." and that the proper 
remedy was mandamus, the second publication and subsequent 
acting by and on behalf of R. being merely void, and P. being in 
office de facto. 3 In an election, held to fill extraordinary and 
ordinary vacancies, in the office of borough councillor, the informa- 
tion, on which the presiding officer is to declare that a particular 
candidate is chosen, to fill an ordinary, and not an extraordinary, 
vacancy, is to be obtained from the ballots alone. 4 When the statute 
requires that, " on the day next after the election shall be held, the 
inspectors of each election and a justice of the peace of the town- 
ship shall compare the vote polled in the township, and certify 
the number of votes cast in favor of prohibition, and the number 
in favor of license, and the result of such election, to the register 
of deeds of the county, who shall first copy such certificate in a 
book," 5 and the certificate is made, not by the inspectors and jus- 
tice, but by the justice alone, and fails to show that the vote had 
been compared, and does not set forth the question involved in 
the election, the certificate is not entitled to record in the office of 
the register of deeds. 6 

1 Freeman's case, C. S. & J. 543. 4 Rowley v. Reginam, 6 Q. B. 668. 

2 5 & 6 W. 4, c. 76, s. 35. 5 Bat. Rev. c. 52, s. 12. 
b Regina v. Mayor, 11 A. & E. 512. "Perry v. Whittaker, 71 N. C. 475. 



489 

§ 580. Where the warrant for the annual town meeting contained 
an article, " to determine the manner of collecting taxes," and 
the record of the town clerk contained the following words, 
" Motion that the treasurer be collector," without showing that the 
motion was carried, it was held that the record did not show that 
the defendant was chosen collector of taxes. 1 A certificate of a 
town clerk of the votes cast for a county officer, at a general town 
meeting, held after the expiration of the time within which the 
electors of the town had been required to vote, on the acceptance 
of an act establishing a city government in place of the town gov- 
ernment, which does not state that the act was not accepted, shows, 
on its face, that the election was not legally held. 2 The statute 
of Indiana contained the following provision : " It shall be the 
further duty of such inspectors to make a certified statement, over 
their own signatures, of the persons elected to fill the several 
offices, in said town, and file the same with the clerk of the circuit 
court, in the county thereof, within ten days from the day of such 
election, and no act, or ordinance, of any board of trustees, chosen 
at such election, shall be valid, until the provisions of this section 
are substantially complied with." 3 It was held that whatever 
might have been the effect of filing a certificate, after the expira- 
tion of the period of ten days limited by the statute, the filing of 
the certificate, after the expiration of the term of office of the 
trustees, could have no effect upon acts previously performed. 4 

§ 581. Returns made by inspectors of elections, are, in general, 
ministerial and not judicial acts ; and they are valid only so far 
as they are confined to the facts which inspectors are required to 
set forth ; if they go beyond these, and state others, such state- 
ments are to be treated as mere surplusage. 5 In England the 
returning officer reports, to the clerk of the crown, the number of 
ballot papers rejected by him, classified under the four heads of : 
(1) Want of official mark, (2) voting for too many candidates, (3) 
writing, or mark, by which the voter can be identified, (4) un- 
marked, or void for uncertainty. If a vote be rejected, on any 
other ground, it must be specially reported. All ballot papers, 
rejected by the returning officer, as invalid, are to be indorsed by 

1 Lincoln v. Chapin, 132 Mass. 470. 4 Pratt v\ Luther, 45 Ind. 250. 

2 Ellis v. Commissioners, 2 Gray, 370. 5 Heath's case, 3 Hill, 42. 

3 Eev. Stat. Ind. G. & H. 622. 



490 

him, with the word " rejected," and, if any objection be made, by 
an agent, to the rejection of any ballot paper, he will add to the 
indorsement the words, " rejection objected to." If requested so 
to do the returning officer is to allow any agent to take a copy of 
the report of the rejected ballot papers sent by him to the clerk 
of the crown. 1 Returns of elections of members of parliament 
are made by the officers, who act under the precept, by tacking 
their indentures of returns to the precepts, and forwarding 
them to the sheriff, who tacks them to his own return for the 
county, and forwards the whole together to the clerk of the crown 
in chancery. 2 An unsigned paper purporting to be a return is 
void. 3 When the returns of an election fail to indicate the office, 
for which the votes received by the parties named were cast, they 
are void, for uncertainty, and the canvassers of the election should 
reject them. 4 Under a statute, making the precinct return to con- 
sist of a copy of the town record, signed by the selectmen, and 
attested by the town clerk, it was held that the canvassers were 
not required to receive, as a return, a paper which did not purport 
to be a copy of the town record, but was a certificate, apparently 
original, of the facts recited, and, although officially signed by the 
selectmen, was not attested by the official signature of the town 
clerk ; that they were neither required to receive, as a return, any 
paper which did not appear, upon its face, to be such return, nor 
to ascertain, or know, that an attesting witness, not described by 
himself, nor shown by the document, to be the officer whose attesta- 
tion was required by law was, in fact, such officer. 5 In determining 
the validity of election returns, the captions of the returns, and 
the recitals of the certificates of the judges and clerks appended 
thereto, are to be considered together. 6 

§ 582. The certificate of a board, or body, of officers is sufficient, 
if signed by a majority, in the absence of express statutory require- 
ment that all shall sign. 7 When two selectmen only, out of three, 
were present, at an election, it was held, by the house of repre- 
sentatives of Massachusetts, that a certificate, signed by one of 

1 35 & 36 Vict. c. 33, rule 36. 5 Luce v. Mayhew, 13 Gray (Mass.), 83. 

2 Webb v. Smith, Arnold, 145. See 6 Dishon v. Smith, 10 Iowa, 212. 

also Kogers on Elections, 31., 7 People v. Supervisors, 10 Abb. Pr. 

3 Bisbee v. Finley, 2 Ells. 172. 233 ; State v. Canvassers, 17 Fla. 29 ; Mc- 

4 Moore v. Kessler, 59 Ind. 152. Kenzie v. Braxton, Smith, 19. 



491 

them and by the absent selectman (the other being the member 
chosen), was "to the acceptance of the house." 1 If there be but 
three selectmen, in a town, and one of them become incompetent 
to act, and a second be elected representative, the third may certify 
the election, and the representative himself may sign the certificate, 
even after he has taken his seat, and his return has been contro- 
verted, for want of a proper certificate. 2 Where the judges of 
election, having inadvertently omitted to sign their returns, applied 
to the canvassers, before the commencement of their canvass, 
for permission to sign them, but the canvassers declined to permit 
them to do so, it was held, on mandamus, that they should have 
been permitted to sign their returns, and that their offer to do so 
should be treated, for the purposes of the case, as a valid authen- 
tication of the returns, and the canvassers were commanded to 
include them in their canvass. 3 The circumstance that the returns 
are signed with the cross-marks, of the inspectors, instead of their 
signatures, is not fatal to the validity of the returns. 4 

§ 583. Where two different returns, of the same tenor, from one 
precinct, were presented to the county canvassers, one prepared 
by the judges and clerks of election, but not signed, the other 
written over the signatures of the judges and clerks, by one of the 
clerks, without the knowledge of the judges, or of the other clerk, 
and the county canvassers rejected the vote of the precinct, it was 
held, by the supreme court of the state, that, if the county can- 
vassers had no power to ascertain, aliunde, facts showing the 
unsigned return to be genuine, so had they no power to ascertain, 
aliunde, facts showing the return, which was signed, to be 
irregular; and that the vote of the precinct was unlawfully 
excluded. 5 Where a precinct return, which was decisive of the 
contest, was never signed by the judge, as required by law, but the 
committee were of the opinion that the votes, as returned, were 
really cast for the parties named, they held that the return was to 
be received. 6 If the law require the return to be signed by two, 
or more, of the judges of election, the signature of one will not be 
sufficient. 7 Where the statute requires a statement to be signed 



French's case, C. S. & J. 256. 

2 Belchertown case, id. 421. 

3 People v. Nordheim, 99 111. 553. 

4 Smith v. Shelby, 2 Ells. 18. 



5 State v. Cavers, 22 Iowa, 343. 

6 Butler v. Lehman, 1 Bart. 353. 

7 Fuller v. Dawson, 2 id. 126. 



492 

by the judges and clerks (there being three of the former and two 
of the latter), the signature of one judge, or of two clerks, will not 
be sufficient. 1 If the returns of an election are not certified, by 
the proper officer, they prove nothing ; and when offered in 
evidence must be rejected. 2 A return signed by only one, of the 
three officers required by law to sign it, will be rejected. 8 

§ 584. A statute providing that the county abstracts, or returns, 
of votes, for different candidates, shall be made on different sheets 
of paper, is not mandatory, but directory ; and an abstract, or 
return, presenting the votes for all the candidates, on the same 
sheet, is valid and sufficient. 4 The provisions of the Massachu- 
setts statute relating to the mode of recording the result of the 
election, and making and sealing up, in open town meeting, a 
true transcript of the record of the result, and delivering the same 
to the clerk, are directory ; and the acts prescribed are not con- 
ditions essential to the right of representation, 5 or to the validity 
of an election legally and fairly conducted. 6 Where, upon failure 
of the officers of election to make and seal up, in open town meet- 
ing, a transcript of the record of the election, such transcript is 
not duly delivered to the canvassing board, but a transcript of 
such record is prepared, on the second day after the election, in 
the absence of evidence of fraud or inaccuracy, it may lawfully be 
used, in the canvass by the board. 7 

§ 585. An election will not be invalidated, by mere neglect or 
irregularity, on the part of the officers, in making up the returns, 
if the will of the voters, legally expressed, can be ascertained with 
certainty. 8 The mere proof of a discrepancy between the vote 
returned and the vote actually cast will not warrant the rejection 
of the return. 9 A precinct return, in which the votes cast for a 
person are stated twice, the statement being evidently a mere ver- 
bal repetition, without any attempt to misrepresent the result, is 
not to be excluded, by the county canvassers. Nor does the fact 
that the return sent to the clerk, does, while that sent to the county 
judge, does not, contain such repetition, justify the rejection of the 

1 Fuller ®. Dawson, 2 Bart. 126. 6 Beck v. Plummer, L. & R. 40 ; New- 

2 McKenzie v. Braxton, Smith, 19 ; Gid- comb v. Holmes, id. 57. 
dings v. Clark, id. 91. 7 Tobey v. King, id. 60. 

3 Norris v. Handley, id. 68. 8 Johnson v. Cole, id. 36. 

4 Fenn v. Bennett, id. 592. 9 Sloan v. Bawls, Smith, 144. 

5 Johnson v. Cole, L. & B. 36. 



493 

return. 1 An erroneous statement of the name of a railway com- 
pany, in the heading of the precinct return of an election held 
on the question of a donation to the company, will not be fatal, 
if the name be correctly stated in the body of the return, and it 
appear that the officers of election and the electors knew for what 
road the aid was voted ; nor will a failure to name the company, 
in the return, prove fatal, if it appear that the name was known 
to the electors and to the officers of election. 2 When only one 
paper, purporting to be the return of a particular precinct, is 
delivered to the county clerk, or his deputy, or deposited in his 
office, within the time prescribed by law, it is the duty of the clerk 
to canvass such return, although not sealed up, marked, bound 
together, or directed, as provided by the statute. 3 The circum- 
stance that the number of votes follows the signatures of the 
officers of election, in a precinct return, is not fatal to the validity 
of the return. 4 A statute, requiring the precinct officers to seal 
up their return, before transmitting it to the clerk, is directory, 
and their failure to comply with the requirement will not invali- 
date their return. 5 

In Mississippi evidence that " one of the registrars, being in- 
toxicated, took a portion of the ballots, in a handkerchief, away 
from the other registrars, and did not return them until next morn- 
ing," is not admissible, without showing that some of the ballots 
had been lost, or altered, or that the plaintiff was, in some manner, 
affected thereby. 6 

1 State v. Canvassers, 17 Fla. 29. trict, wherein two representatives were 

2 Irwin v. Lowe, 89 Ind. 540. to be chosen, the canvass, under the offi- 

3 Long v. State, 17 Neb. 60. cial seal of the secretary of state, showed 

4 Irwin v. Lowe, 89 Ind. 54.0. . the following vote : Silas Wood, 3,960 ; 

5 State v. Canvassers, 17 Fla. 29. Cadwallader D. Colden, 3,339 ; Peter 
Pradat v. Ramsay, 47 Miss. 24. Sharpe, 3,369 ; Joshua Smith, 3,326 ; 
It was provided, in the law of New Cadwallader D. Colder, 220 ; Cadwalla- 

York, that the inspectors of election der Colden, 395. It appeared, from the 

should. make a certificate, specifying the testimony, that the votes canvassed for 

number of votes cast for each candidate, Cadwallader D. Colder and Cadwallader 

and lodge a copy thereof with the county Colden were, in fact, certified by the 

clerk, who was required to transmit inspectors for Cadwallader D. Colden, 

copies of all the certificates to the office and that the mistakes were made, by the 

of the secretary of state ; and certain county clerk, in the copies transmitted 

state officers were constituted canvassers, to the office of the secretary of state, 

and authorized to give certificates of The committee held that these votes, 

election. In the first congressional dis- having been given for the contestant, 



494 

§ 586. A failure of the officers of one of several precincts, of an 
election district, to make a return, from whatever cause, will not 
invalidate the election, unless it be shown that the votes if returned 
would have changed the result. 1 The law required the commis- 
sioners of election of Berkeley county to certify the result of the 
election to the clerk of that county, to record the same in a book, 
and to send a certified copy to the clerk of Alexandria county. It 
was held that, in the absence of fraud and error in the result, not- 
withstanding a failure to comply with the law, the vote should be 
counted. 3 It has been held that, when the application for an elec- 
tion, upon the question of a donation to a railway company, and 
the clerk's notice of the election, are shown, in writing, and the 
return of the election is lost, the holding of the election and the 
result may be shown, by parol evidence, to sustain the validity of 
bonds issued under such election. 3 

§ 587. A court of equity cannot restrain a county clerk from 
certifying election returns to the board of canvassers, although 
they are admitted to be forgeries. If the clerk is satisfied that a 
paper, purporting to be a return, is a forgery and, therefore, no 
return, it is not a paper of which he can take any notice. But if 
its authenticity be doubtful, he cannot judge of its validity. If 
the return be signed by the proper officer, the clerk must transmit 
it to the board of canvassers. 4 

§ 588. A statutory provision that the return of an election shall 
be made, to the secretary of state, within thirty clays, is directory ; 

ought to have been so returned and can- the respective candidates consisted of a 

vassed; and, upon their recommenda- statement that they were voted for as 

tion, the seat was awarded to the con- candidates for congress, and that they 

testant by the house. Colden v. Sharpe, • received eleven votes and three votes, 

C. & H. 369. respectively, for superintendent of pub- 

Where the return showed one hun- lie instruction, the committee, being 
dred and fifty-two votes for the con- unwilling to deprive the citizen of his 
testant, and none for the sitting mem- vote in consequence of the blunders of 
ber, and it was proved, by the testi- others, unanimously allowed these votes, 
mony, that at least forty-two votes were But the house, on various grounds, re- 
in fact cast and counted for the sitting jected the report of the committee. Mil- 
member, the return was rejected. Nib- ler v. Thompson, 1 Bart. 118. 
lack v. Walls, Smith, 101. 1 Heath's case, 3 Hill, 42. 

Where it did not appear, either from 2 McKenzie v. Kitchen, 1 Bart. 78. 

the returns, or proofs, that the officers 3 Prairie v. Lloyd, 97 111. 179. 

of election were sworn, and the only evi- 4 Thompson v. Ewing, 1 Brewst. 67. 
dence of the number of votes cast for 



495 

and votes, subsequently returned, will be counted. Otherwise the 
will of the people might be defeated by a fraudulent officer, or by 
accidental loss. 1 When the votes of a precinct are regularly and 
legally cast, but the returns of the precinct are not received, by the 
clerk, until after the canvassers have, pursuant to law, canvassed 
the returns received, and declared and certified the result, they 
will, nevertheless, be counted in a contest. 2 It is competent for 
the legislature to legalize the acts of boards of trustees, and other 
officers of incorporated towns, when the inspectors of elections have 
failed to make the return of the election of such officers within the 
time prescribed by law. 3 An act of the legislature of Indiana, 
entitled "An act to legalize the acts of boards of trustees, and 
other officers of incorporated towns, in cases where the inspectors 
of elections have failed to make the return of the election of such 
officers, within the time prescribed by law," contained the following 
provision : " The failure of the inspectors of any election, held in any 
incorporated town, in this state, to make out a certified statement 
of the persons elected to fill the several offices in said town, over 
their own signatures, and file the same with the clerk of the circuit 
court of the proper county, within the time required by law, shall 
not invalidate any of the acts of any officer, or officers, elected at 
such election, and all and every of their acts shall be taken and 
considered as valid as if said certified statement had been filed 
with the said clerk, within the time prescribed by law." 4 It was 
held, by the supreme court of Indiana, that the operation of this 
statute was retrospective, and not prospective ; that it did not 
apply to elections subsequent to its enactment. 5 

In the absence of proof of fraud, or unfairness, the failure of 
the officers of election to transmit the oaths of the inspectors and 
clerk, with the precinct return, to the clerk of the circuit court, 
will not be fatal to the return, if it be shown that they were actually 
sworn, before they entered upon the performance of their duties. 6 

§ 589. The transmission of the precinct returns to the county 
officers, by an unofficial person, and not under seal, in violation 
of a statute requiring them to be delivered, in a sealed envelope, 

1 Brockenbrough a. Cabell, 1 Bart. 79. 5 Lucas v. Town, 86 Ind. 180. 

2 Cresap v. Gray, 10 Oregon, 345 ; Todd 6 Finley v. Walls, Smith, 367 ; State v. 
v. Jayne, 1 Bart. 555. Canvassers, 17 Fla. 29. But see Fuller 

3 Gardner v. Haney, 86 Ind. 17. v. Dawson, 2 Bart. 126. 

4 Stat. Ind. Mch. 13, 1875. 



£96 

by one of the judges of election, is a grave irregularity ; but that 
alone will not warrant the rejection of the returns, if the evidence 
shall show that they were delivered in the same form and condi- 
tion in which they were received from the judges. 1 The fact that 
the precinct returns were delivered to the returning board, by the 
registrar, instead of a judge of election, will not warrant the rejec- 
tion of the returns. 2 The house of representatives of the United 
States excluded a return which was not sent to the secretary of 
state, by a " special messenger," as the statute required, but was 
delivered to a sutler, who sent it by express. 3 Where the statute 
requires, " that one of the said inspectors of election, who shall 
actually preside at such election, in each of the towns and wards 
of this state, to be appointed, for that purpose, by a major part 
of the said inspectors who shall so preside, shall, on the Tuesday 
next following the said election, on or before one of the clock in 
the afternoon of that day, attend at the clerk's office of the county, 
in which each election shall be holden, and shall, in person, deliver 
to the said clerk at the office, or to his deputy, or to the keeper 
of the said office, a true copy of the said statement of votes, so 
given at the election in the said town, or ward, of which he was 
inspector, certified by him and the other inspectors aforesaid," 4 
the inspectors all equally preside, and all have equal powers ; a 
written appointment of the inspector selected to deliver the certifi- 
cate is not indispensable. If an objection be taken, when the 
inspector presents the certificate to the board of canvassers, his 
appointment may be proven, either by written or by parol evi- 
dence. The delivery of the certificate and attendance, for the 
performance of the duty imposed by law, are prim,a facie proof of 
an appointment for that purpose. A written certificate of appoint- 
ment, signed, on the day of the canvass, by two out of three inspect- 
ors, one of the signers being the appointee, is evidence of the 
appointment. The act giving the power of appointment to the 
major part of the inspectors who preside, the person appointed is 
not excluded from participation, and may constitute one of the 
majority who confer the appointment. 5 But where an unorganized 
county of a territory was attached to an organized county, for 

1 Cox 0. Strait, Smith, 428. 4 Stat. N. Y. 45th Sess. p. 274. 

2 Yeates v. Martin, 1 Ells. 384. B People v. Van Slyck, 4 Cow. 297. 

3 Chavis v. Clever, 2 Bart. 469. 



497 

election purposes, under statutory provisions requiring the officers 
of election to return the poll-books to the clerk of the organized 
county, to be opened by the probate judge and three disinterested 
householders of such county, and requiring the clerk of the organ- 
ized county to send an abstract of the poll-books to the governor of 
the territory, and the officers of election sent the returns directly 
to the governor, and they were taken from the post-office by his 
private secretary, who opened and examined them, and then sent 
them, himself, to the clerk of the organized county, with directions 
to return them, with the returns of the organized county, which 
he did, it was held, by the committee, that this was such a viola- 
tion of law as vitiated the returns from the county. 1 Under a 
statute making it the duty of the auditor of the county, on a 
specified day, in the presence of the clerk of the court of common 
pleas, and probate judge, " to declare the result " of the election, 
from " returns signed, sealed, and delivered, by the clerks of the 
several boards of education," before the next Monday after the 
election, the auditor will not be compelled, by mandamus, to count 
returns delivered to him unsealed, or sent to him by mail, without 
a disclosure of their contents, and opened by him, in the absence of 
the clerk and judge, before the day specified. 2 

§ 590. After it is ascertained that a change in a small number of 
votes, will change the result of an election, it is dangerous to 
permit the officers of election to recall their proceedings, and 
amend them, so as to reverse the result. 3 Where the statute 
required the county commissioners to canvass the vote, within 
three days after the election, and, immediately after such canvass, 
to prepare a certificate of the result, to be sent by the clerk, under 
seal, by the next mail, to the secretary of state, and required the 
state canvassers to make out certificates of election, as soon as all 
the returns were received, or on the fourth Monday after the elec- 
tion, whether the returns were, or were not, received, it was held 
that when the county canvassers had canvassed the votes of the 
county, and delivered their certificate to the clerk, and he had 
transmitted the same to the secretary of state, their functions 
ended, and they had no power to recall, correct, or supplement 
their certificates ; and that the state canvassers properly refused 

1 Daily v. Estabrook, 1 Bart. 299. 3 Frost v. Metcalfe, I Ells. 289. 

2 State v. Randall, 35 Ohio St. 64. 

32 



498 

to canvass amended or supplementary returns. 1 But where it 
appeared that the inspectors of election had, by mistake, failed to 
return votes cast, at one precinct, for one of the candidates, they 
were allowed by the committee and by the house. 3 Where the 
mayor and aldermen of a city declined to correct a mistake, in the 
statement of votes for representatives, returned from one of the 
wards therein, on being furnished with an* amended return, by 
the ward officers, and adjudged that no election had been effected, 
and thereupon ordered a new election, but it appeared, upon the 
corrected return, that an election did in fact take place, the house 
admitted the members elected. 3 

§ 591. It was provided, in the law of Massachusetts, that, at 
the close of the poll, in each ward, the result, having been ascer- 
tained by the officers of election, should be certified, on blanks 
prepared for the purpose, by a majority of the officers, publicly 
declared before the adjournment, in open meeting, and entered 
upon the record of the officers of election ; that certified copies 
thereof should be delivered forthwith to the city clerk, and by him 
immediately entered upon the records ; that the mayor, aldermen, 
and city clerk should forthwith after the election examine the 
returns from each ward, and, if any error should appear therein, 
should forthwith notify the election officers of the ward, who 
should forthwith make a new and additional return, under oath, 
in conformity to truth, which additional return, whether made 
upon notice, by such officers, or without notice, should be received 
by the mayor and aldermen, or city clerk, at any time before the 
expiration of the day preceding that on which they were required 
by law to make their returns, or to declare the result of the election 
in the city ; that all original and additional returns, so made, should 
be examined by the mayor and aldermen, and made part of their 
return of the result of the election ; that, in 'counting the votes, no 
returns should be rejected, where the votes given for each candidate 
could be ascertained ; that the returns of the mayor and aldermen 
should, in the case of a representative in congress, be transmitted, 
within ten days after the election, to the secretary of the common- 
wealth, and, by him be laid before the governor and council, who 

^hrisman v. Anderson, 1 Bart. 338. Q Wright v. Fuller, C. & H. 518. 

The minority of the committee dissented. s Fellows' case. C. S. & J. 639. 

The house sustained the report, by a 
vote of 1X2 to 61. 



499 

were required to canvass the returns from the entire district, 
declare the result, and give a certificate of election to the person 
appearing to them to be elected. On the next day after the elec- 
tion the officers of election, in the twelfth ward of the city of 
Boston, returned eight hundred and five votes for Rice and eight 
hundred and ninety for Sleeper ; and the mayor and aldermen 
certified the result, in the six wards embraced in the congressional 
district, to the secretary of the commonwealth as follows : for 
Sleeper three thousand six hundred and twenty-nine votes, and 
for Rice three thousand seven hundred and seventeen votes. On 
the seventh day after the election the officers of the twelfth ward 
made an amended, or corrected, return to the mayor and aldermen, 
showing eight hundred and thirty -three votes for Rice, and eight 
hundred and sixty-one votes for Sleeper; and the mayor and 
aldermen forthwith transmitted to the secretary of the common- 
wealth an amended return, for the six wards, showing thirty-six 
hundred votes for Sleeper, and thirty-seven hundred and forty-five 
for Rice. This correction changed the result in the district. It 
was held, by the committee, that the amended, or corrected, 
return was authorized by law. 1 

§ 592. Poll-books, duly certified and returned, are prima facie 
evidence of the truth of their contents ; but the presumption so 
raised may be rebutted, by proof that they are fraudulent and ficti- 
tious to such an extent as to render them wholly unreliable. When 
a poll-book is so impeached, the burden of proving legal votes, 
by other proof, is thrown upon the party claiming them. 2 Under 
a statute, regulating military elections, and providing that " the 
poll-books shall name the company and regiment," where a poll- 
book designates the company by its letter, and the regiment by 
its number, without indicating the state to which the regiment be- 
longed, if it appear that the voters were citizens and voters of a 
particular state, it will be presumed, in the absence of proof to 
the contrary, that the regiment belonged to the same state. 3 
When the poll-books are certified by judges different from those 
appointed by the county court, it will be presumed, in the absence 
of proof to the contrary, that they were substituted, by the voters, 
for the appointed judges, in the manner prescribed by the statute. 4 

Sleeper v. Kice, 1 Bart. 472. The 3 Lehman v. McBride, 15 Ohio St. 573. 

house concurred. 4 Patton v. Goats, 41 Ark. 111. 

8 Phelps ©. Schroeder, 26 Ohio St. 540. 



500 

The fact that the poll-books are conveyed to the county clerk, by 
a person who is not an election officer, in violation of the statute, 
will not warrant the rejection of the poll, by the canvassers. 1 

§ 593. When the vote of a town is rejected, by the county can- 
vassers, because no poll-list, with the oath of the inspectors of 
election, accompanied the statement of votes made up and 
returned to the clerk of the county board of canvassers, the 
statement being regular in all other respects, and delivered 
by and to the proper officers within the time prescribed 
by law, the testimony of the town clerk is competent, on an 
information in the nature of a quo warranto, to show, by the records 
kept in his office, that the election was regularly notified and con- 
ducted, and that the votes were ascertained and canvassed, 
according to law, and also to show the number of votes cast, in 
that town, for the different candidates for the office in question. 
The chairman of the board of supervisors of the town whose vote 
is rejected, for the reason above stated, is a proper witness to show 
that he acted as one of the inspectors of election, that such in- 
spectors were duly sworn, before the polls were opened, and that 
the election was conducted according to the statute. 2 If the judges 
of election fail to transmit the poll-book to the county judge, or 
clerk, as required by law, but an unsigned list, used by the judges 
at the election, is found and used by the county canvassers, the 
irregularity will not be fatal to the return of the precinct. 3 Under 
a statute requiring the judges of election to " put under cover one 
of the poll-books, seal the same, and direct it to the county, 
or corporation, court clerk," to be delivered to such clerk, on the 
day following the election, six members of the committee of elec- 
tions of the house of representatives were of the opinion that the 
omission of the judges to seal the poll-book was not fatal to the 
precinct return. Five members of the committee regarded the 
omission as fatal. The views of the minority on the whole case, 
which involved other questions, were sustained by the house. 4 
The mere failure of the judges of election to seal up the poll- 
books, before sending them to the clerk, will not invalidate them. 5 
In Oregon the failure of the officers of election to send the poll- 

1 Willeford v. State, 43 Ark. 62. 4 Piatt v. Goode, Smith, 650. 

2 Attorney-General v. Ely, 4 Wis. 420. 5 Patton v. Coats, 41 Ark. 111. 

3 Finley v. Walls, Smith, 367. 



501 

book to the county clerk will not justify the rejection of the vote 
of the precinct. 1 But the absence of a certificate from the poll-book 
has been held, by the committee of elections of the house of rep- 
resentatives of the United States, to be a sufficient ground for 
the rejection of a return. 2 

§ 594. Under a statute requiring the clerk of the election to 
sign his name, " at the foot of every page of the poll-book, as the 
election progresses, so that the same may be identified," but not 
requiring the leaves of the poll-book to be attached together, 
when the poll-book, furnished to the clerk, was insufficient to 
contain all the names of the persons offering to vote, and the 
clerk therefore prepared a separate sheet, upon which thirty-four 
were recorded, and the certificate prepared by the judges, in con- 
formity with the law, included these thirty-four votes, and the 
separate sheet was placed in the poll-book, the clerk's name not 
being signed at the foot, and the whole was delivered, under seal, 
to the sheriff, and laid before the canvassers, in the exact condi- 
tion in which the sheriff received it, it was held that the canvas- 
sers had no right to reject the thirty-four votes, that the provision 
requiring the clerk to sign his name, at the foot of each page, 
was directory, and that the absence of his signature would not 
justify the rejection of a page of the poll-book, tlie authenticity of 
which was established by other legal and competent evidence. 3 

§ 595. If the precinct, from which a poll-book comes, be shown, 
in the body of the poll-book, the mere fact that the blank heading 
of the poll-book is not filled up with the name of the precinct 
will not invalidate the poll-book. 4 Upon failure of the judges 
and clerks of election to state the aggregate number of the voters, 
in the poll-book, or tally -list, the defect may be supplied by parol 
proof, and the document, so corrected, will be admissible, as evi- 
dence of the result of the election. 5 The failure to fill up and 
sign the certificate showing the aggregate number of votes cast at 
the election, will not invalidate the poll-book, if it otherwise show 
how many electors voted, and give the name of each. 6 Under the 
law of Illinois the tally -list is a part of the return, to be Considered 

1 Day v. Kent, 1 Oregon, 123. See also 4 Slate v. Sillen, 24 Kan. 13. 
Lynch v. Chambers, 2 Ells. 338. B Howard v. Shields, 16 Ohio St. 184. 

2 Delano v. Morgan, 1 Bart. 168. 6 State v. Sillen, 24 Kan. 13. 

3 Clark v. McKenzie, 7 Bush. 523. 



502 

in the determination of the result of the election. 1 The neglect 
of the officers to file the tally papers cannot affect the number of 
votes cast. 2 The failure of the judges, or clerks, of election, to 
fill up blanks, in the caption of the poll-book, or tally-sheet, 
is not fatal. The defect may be remedied, by parol proof, and 
the document, so corrected, will be competent evidence of the 
result of the election. 3 

§ 596. While it is well settled that mere neglect to perform 
directory requirements of the law, or performance in a mistaken 
manner, where there is no bad faith and no harm has accrued, will 
not justify the rejection of an entire poll, it is equally well settled 
that when the proceedings are so tarnished by fraudulent, negligent, 
or improper conduct, on the part of the officers, that the result of 
the election is rendered unreliable, the entire returns will be 
rejected, and the parties left to make such proof as they may of 
the votes legally cast for them. 4 But in Massachusetts the select- 
men having, inadvertently, omitted to count a considerable portion 
of the votes cast for members of the house of representatives, in 
consequence of which it became impossible to determine whether 
the members returned received a majority of all the votes, the 
election was held void. 5 

§ 597. Where the statute requires the officers of election to pre- 
serve and return copies of all rejected ballots, with the originals 
attached, a failure of the officers to comply with the requirement 
will not, upon an information in the nature of a quo warranto, 
prevent the counting of the ballot, if illegally rejected. 6 A statutory 
requirement that the ballot-boxes shall be " securely sealed up, by 
the canvassers," contemplates that the boxes shall be so sealed 
that they cannot be opened, without breaking the seals. But this 
provision is directory only ; and when it is satisfactorily shown 
that the boxes have been kept " undisturbed and inviolate," the 
omission of the canvassers to seal up the boxes, as contemplated 
by the statute, does not render the ballots inadmissible, as evidence. 
But the burden of proof is upon the party producing the ballot- 

1 People <o. Ruyle, 91 111. 525. Thayer v. Greenback, id. 189 ; Pattern V. 

2 Mann v. Cassidy, 1 Brewst. 11. Coats, 41 Ark. Ill ; Bisbee v. Finley, 2 

3 Howard «. Shields, 16 Ohio St. 184. Ells. 172. 

4 Covode v. Foster, 2 Bart. 600 ; Mann 5 Kittredge's case, C. S. & J. 205. 
v. Cassidy, 1 Brewst. 60 ; Thompson v. fi People v. Seaman, 5 Denio, 509. 
Ewing, id. 67 ; Weaver v. Given, id. 140 ; 



503 

boxes to show that they have been kept undisturbed and inviolate ; 
it is not sufficient that a mere probability of security is proved ; 
the fact must be established with a reasonable degree of 'certainty. 1 
A statute^ providing that the ballot-boxes shall be " securely sealed 
up by the canvassers, and they shall then be deposited, by them, 
in the department of police," does not make it the duty of the 
canvassers personally to carry the boxes to the police department, 
nor does it make it their duty to deposit them at police head- 
quarters. A delivery of the boxes, by the canvassers, to police 
officers, duly assigned to the duty, and a deposit of the boxes, by 
such officers, in the precinct station-house, is a substantial com- 
pliance with the provision. 2 When the ballots, cast for repre- 
sentative in the state legislature, are not preserved, in the manner 
prescribed by law, but, after the adjournment of the meeting, are 
taken, by the selectmen, in a ballot-box, into another room, tied 
up in a paper, and placed in an unlocked closet, and, a day or 
two afterwards, sealed up, but not delivered to the town clerk, 
until a short time prior to the hearing before the committee of the 
house of representatives, they have not been preserved in such 
a manner as to justify a recount by the house of representatives. 3 
The accidental loss of the ballots cast and affidavits used at a 
particular precinct, before the county canvass, affords no ground 
for the rejection of the entire return of the precinct. 4 

Where the poll-books of certain precincts were not forwarded 
to the secretary of state, with the abstract of votes, but were sub- 
sequently, and within the time limited by law, forwarded to him, 
it was held sufficient. 5 Where the state law requires tally sheets, 
in a prescribed form, to be transmitted, with the poll-books, from 
the voting places, in the field, to the office of the auditor of state, 
the committee will presume, in the absence of proof to the contrary, 
that such tally sheets were duly transmitted, and remain on file, 
properly filled up and attested. 6 

§ 598. An election of two representatives, at one balloting, by a 
town having a right to send only one, is void. 7 The election 
of a fourth representative, on a separate balloting, by a town 

People v. Livingston, 79 N. Y. 279. 6 Lane V. Gallegos, 1 Bart. 164. 

2 lb. 6 Follett v. Delano, id. 113. 

3 Davis v. Murphy, L. & R. 177. 7 Churchill's case, C. S. & J. 146. 
* Beardstown v. Virginia, 76 111. 34. 



504 

entitled to only three, is void. 1 Where three members of the 
house of representatives of Massachusetts were elected, at separ- 
ate ballotings, in a town which contained more than a sufficient 
number of ratable polls to entitle it to two, but not enough to 
entitle it to three, it was held that the deficiency affected only the 
right of the member last chosen. 2 If the electors, having the right 
to vote for two commissioners, in fact vote for only one, the can- 
didate receiving the highest number of votes is alone elected. 3 

§ 599. The mere fact that the number of votes, returned, ex- 
ceeds the number of names, checked on the voting list, does not, 
in the absence of proof of fraud, or of a change in the result, 
affect the validity of the election. 4 When it is within the "general 
knowledge " of the court that the votes returned greatly outnumber 
the voters of the county, the court will, in the exercise of a sound 
discretion, refuse a mandamus to compel the proper officer to dis- 
close the result in accordance with the canvass. 5 The code of 
Iowa contained the following provision : " If the ballots, for any 
officer, are found to exceed the number of the voters recorded in 
the poll-lists, that fact shall be certified, with the number of the 
excess, in the return, and, if it be found that the vote of the pre- 
cinct, where the error occurred, would change the result in relation 
to a county officer, if the person elected were deprived of so many 
votes, then the election shall be set aside, as illegal, and a new 
election ordered therein." 6 It was held that, if the votes cast for 
a particular office did not outnumber the recorded voters, a new 
election could not be legally ordered as to that office, although the 
whole number of ballots cast at the election in fact exceeded the 
number of voters. 1 The following facts, concurring, were held 
not sufficient to prove wilful irregularity or to avoid the election 
return : The number of ballots did not exactly correspond with 
the number of names checked on the voting list ; persons, whose 
names were checked, were denied the right to vote .; persons, 
whose votes had been rejected, were permitted to vote, upon pres- 
entation of written statements from the registrars, the contents of 

^urnap's case, C. S. & J. 154. King v. Park, L. & K. 155 ; Lynch ». 

2 Parson's case, id. 103; Walker's case, Chalmers, 2 Ells. 338. 
id 74. 5 State v. Mitchell, 23 Kan. 456. 

3 People v. Canvassers, 11 Mich 111. 6 Code Iowa, 1873, s. 627. 

4 Ordway v. Woodbury, L. & R. 163 ; 7 Rankin v. Pitkin, 50 Iowa, 313. 



505 

such statements not being shown ; a person, not an officer of election, 
was admitted behind the rail, it not appearing that he was there 
for an improper purpose. 1 The following irregularities, concurring, 
have been held sufficient to avoid an election : The record did not 
show the whole number of votes cast for any candidate ; the num- 
ber of votes recorded did not correspond with the number of 
names checked on the voting list ; it was uncertain how many of 
the selectmen participated in the canvass of the votes ; by-standers, 
who were legal voters, testified that they witnessed the canvass, 
and that they saw enough votes cast for the contestant, in addition 
to those counted for him, to change the result, and that they veri- 
fied this, by recounting the ballots the next morning, in the poll 
room, where they found them unsealed ; depositions of persons, 
equal, in number, to the votes found by this recount to have been 
cast for the contestant, to the effect that they voted for him, were 
offered in evidence ; and the ballots were not preserved as required 
by law. 2 

§ 600. The following irregularities are infractions of directory 
provisions of statutes, and, in the absence of proof of fraud, will 
not invalidate the election ; the failure of one, or more, of the 
officers of election, to take the oath of office prescribed by law ; 
the failure to file the official oath, of one or more of the officers of 
election, in the office of the secretary of state ; the failure to 
appoint a clerk of election, to keep a poll-list, or to open the polls, 
at the hour fixed by law ; the failure of the clerk to take the oath 
of office ; the fact that a ballot-box had more than one aperture ; 
the fact that but one United States supervisor attended the elec- 
tion ; the temporary closing of the poll during the day ; the 
failure to keep a tally-list, or to count the ballots immediately 
after the close of the poll, or to administer the oath prescribed 
by law to the voters ; the fact that the poll-books, ballot-boxes, 
and statements of results were not delivered to the county canvas- 
sers, by the chairmen of the precinct boards ; the refusal of the 
county canvassers to entertain and decide upon protests presented 
by electors ; the fact that the election was conducted by two, 
instead of three, precinct officers ; the fact that the county can- 
vassers opened the ballot-boxes, when they canvassed the votes. 3 

1 Barr'8 case, L. & K. 254. 8 Kichardson v. Eainey, 1 Ells. 224. 

2 Perry x>. Montague, id. 200. 



506 

The following acts and omissions, although violations of law, 
on the part of the officers of election, are not such irregularities 
as will, in the absence of fraudulent purpose, or intentional viola- 
tion of duty, invalidate the election : The opening, by the clerk, 
of the sealed transcript of the record and exhibition of the 
transcript to a selectman of another, town in the district ; making 
the record and transcript, after the adjournment of the town 
meeting ; delivering to the meeting of the clerks, on the day after 
the town meeting, a copy of the record, not signed by the select- 
men, nor sealed up ; making up the record, on the second day 
after the town meeting, and then drawing up a statement of the 
votes for representatives, signed by a majority of the selectmen, 
and by the clerk, sealed up and delivered to the clerk in open 
town meeting, and by him carried to the meeting of the clerks, 
on the next day, with the accidental omission of the year of the 
election. 1 

1 Johnson ©. Cole, L. & R. 36. 



CHAPTEK XXVI. 



COUNTY, CITY, DISTRICT, STATE CANVASS. 



Secs. 

1. Organization of board; quo- 

rum 601,602 

2. Powers and duties . . 603-612 

3. Time and place of canvass . . 613 

4. Manner of canvass. 

(1) Returns which are to be can- 

vassed, and those which are 

to be rejected . . 614-616 

(2) Failure or exclusion of pre- 

cinct vote or return . . 617 

(3) Correction of precinct re- 

turn 618 

(4) Fundi officio . . 619-621 



Secs. 
(5) Determination of result ; ma- 
jority ; plurality ; whole 
• number of votes; tie 
vote .... 622-624 

5. Certificate ; return ; proclama- 

tion; credentials; commis- 
sion ; record ; double certifi- 
cate ; minutes . . . 625-632 

6. Abstracts . . . . .633 

7. Refusal, or neglect, to furnish 

credentials .... 634 

8. Fraud, misconduct, or mistake, 

of canvassers .... 635 

9. Disposition of documents and 

ballot-boxes ... 636 



§ 601. The results of county, district, and state elections are 
determined by boards of canvassers constituted according to 
law. The practice is not uniform. In some states the results 
of the elections of county and district officers, as well as of 
state officers, are determined by the state canvassers. The statute 
of Kentucky contained the following provisions : " The presiding 
judge of the county court, the clerk thereof, and the sheriff, 
or other officer, acting for him at an election, shall constitute 
a board for examining the poll-books of each county, and giving 
certificates of election. Any two of them may constitute a 
board ; but, if either is a candidate, he shall have no voice in the 
decision of his own case. If, from any cause, two of the before 
named persons cannot, in whole or in part, act in comparing the 
polls, their places shall be supplied by the two justices of the 
peace who may reside nearest to the court house. * If the 
office of sheriff is vacant, or if the sheriff is himself a candidate, 
at any election, all his duties pertaining to that election shall be 
performed by the coroner." Under this statute, the supreme 
court of the state held that, where the sheriff was disqualified to 
act as a member of the board of canvassers, and there was no 

507 



508 

person who acted for him, at the election to fill his place in the 
board, and the clerk of the county court was prevented by illness 
from acting as a member of the board, or was a candidate for 
re-election, the two justices of the peace residing nearest to the 
court house were to be called in, to supply their places ; that the 
statute contemplated the organization of only one canvassing 
board, and, the sheriff not being a candidate, either of the other 
two persons designated by law might act in conjunction with him, 
although one of them might be a candidate ; but that, where two 
of them were candidates, it was necessary to supply their places 
in the manner pointed out by the statute. Where the sheriff, pre- 
siding judge, and clerk are candidates for re-election, they are all 
disqualified from acting as members of the board of canvassers. 1 
§ 602. Where the law commits the general control of the 
machinery of municipal elections to the common council, but 
makes no express provision for the canvass of the votes cast for 
particular officers, such canvass is properly made by the common 
council. 2 Under a constitution, declaring that "the county judge, 
with such justices of the peace, in each county, as may be desig- 
nated by law, shall hold terms, for the transaction of county busi- 
ness, and shall perform such other duties as the general assembly 
shall prescribe," 3 a statute making the county court to consist of 
the county judge and two justices of the peace, and declaring that 
" any two of the three shall constitute a quorum to do business," 4 
is effective to make valid a quorum consisting of the county judge 
and one justice of the peace, whether it is, or is not, effective to 
make valid a quorum consisting of two justices of the peace. 5 The 
objection that the certificate of the canvassers was void, " because 
the majority of the board were unofficial persons, not authorized 
by law to canvass the votes, or make the return," is not fatal, in 
the absence of proof of error, or irregularity, in their action. 6 A 
majority of a quorum of a board of county supervisors, a quorum 
being present, can perform any act which a majority of the board 
could perform if all were present. n 

Salman ®. Megowan, 1 Mete. (Ky.) 4 Kev. Stat. 111. 1856, part 1, p. 293, 

533. s. (79). 

2 State v. Thompson, 25 Minn. 106. 5 Pace v. People, 50 111. 432. 

3 Const. 111. 1848, art. 5, s. 19. 6 Finley v. Walls, Smith, 367. 

7 People v. Harrington, 63 Cal. 257. 



509 

§ 603. The duties of county, district, and stete canvassers are 
generally ministerial. They are to determine the results shown by 
the returns which are, by law, made the basis of their action. 
Unless authorized by statute, they cannot go behind those returns. * 
In the absence of express legislation to the contrary, the return 
of the precinct canvassers is conclusive upon the county canvas- 
sers as is the return of the county canvassers upon the district, or 
state, board. 2 The duty of the canvassers is to take the returns, 
as presented to them, according to law, add them up and declare 
the result. Questions of illegal voting and fraudulent practices 
are to be passed upon by another tribunal. The canvassers are 
to be satisfied of the genuineness of the returns, that is, that the 
papers presented to them are not forged or spurious ; that they 
are returns, and are signed by the proper officers ; but, when so 
satisfied, they may not reject any returns because of informalities 
therein, or because of illegal and fraudulent practices in the elec- 
tion. The simple duty of the canvassing board is to declare the 
apparent result of the voting. All other questions are to be tried 
before the tribunal invested with jurisdiction of cases of contested 
elections. 3 Under a statute providing that the county canvassers 
shall " open and canvass the returns, and make abstracts, stating 
the number of ballots cast, in each precinct, for each office, the 
name of each person voted for, and the number of votes given to 
each person, for each different office," 4 the county canvassers 
have no authority to revise the registry, or to examine into the 
qualifications of those who voted, or who were refused permission 
to vote. They must decide upon the authenticity and regularity 
of the returns ; but the returns, when received, must be canvassed 
as importing absolute verity, so far as the county canvassers are 

1 Bacon v. Commissioners, 26 Me. 491 ; 523 ; Moore v. Jones, 76 N. C. 182 ; 

Clark's case, 25 id. 567; Hagge v. State, Leigh v. State, 69 Ala. 261; People v. 

10 Neb. 51; State v. Peacock, 15 id. Nordheim, 99 111. 553; People v. Kilduff, 

442 ; State v. Governor, 1 Dutch. 331 ; 15 id. 492 ; Phelps <&. Schroeder, 26 Ohio 

State v. Wright, 10 Heisk. 237 ; Attor- St. 549 ; People v. County Commission- 

ney-General v. Barstow, 4 Wis. 567 ; ers, 6 Col. 202 ; Kane v. People, 4 Neb. 

State v. County Judge, 7 Iowa, 186 ; 509. 

Field f>. Avery, 14 Wis. 122; State v. 2 State v. Townsley, 56 Mo. 107. 

Pierrepont, 29 id. 608; Clark v. Mc- 3 Lewis v. Commissioners, 16 Kan. 

Kenzie, 7 Bush. 523 ; Chumasero v. 102 ; State v. Canvassers, 17 Fla. 29. 

Potts, 2 Mont. 242 ; grower v. O'Brien, 4 Stat. N. C. 1876-7, c. 275, s. 25. 
2 Ind. 423 ; Clark v. McKenzie, 7 Bush. 



510 

concerned. Their quasi judicial functions do not extend beyond 
an inquiry into, and a determination of, the regularity and suffir 
ciency of the returns themselves. 1 Under a statute requiring the 
board of canvassers, when organized, " to proceed to calculate and 
ascertain the whole number of votes, which shall be given, at such 
election, in said county, for the several persons who shall be voted 
for," 2 the duties of the canvassers are ministerial. They have 
no power to controvert the votes of the electors. If they deviate 
from the directions of the statute, and certify in favor of a sheriff 
not duly elected, he will be liable to be ousted by information in the 
nature of a quo warranto. The trial is to be had on the right of 
the party holding the office. The certificate is not conclusive. 
The remedy, therefore, is by information, and not by certiorari. 3 

§ 604. When papers are presented, as returns, to county, dis- 
trict, or state, canvassers, it becomes the duty of the canvassers 
to determine, on inspection of the papers, whether they are, in 
form and substance, legal returns, and also to determine, on in- 
spection of the papers, and on consideration of the mode of their 
presentation, whether they are authentic returns. The canvassers, 
having decided that the documents are legal and authentic returns, 
are not permitted, by the statutes generally in force in the United 
States, to "go behind the returns," for any purpose, but are re- 
quired to canvass the votes, as ministerial officers, strictly in 
accordance therewith. The following was the provision of the 
Missouri statute : " The secretary of state, in the presence of the 
governor, shall proceed to open the returns and to cast up the 
votes given for all candidates for any office, and shall give to the 
persons having the highest number of votes for members of congress 
from each district, certificates of election under his hand with the 
seal of the state affixed thereto." The supreme court of Missouri 
held as follows : " Here is no discretion given, no power to pass 
upon and adjudge whether votes are legal or illegal, but the simple 
ministerial duty to cast up and to award the certificate to the per- 
son having the highest number of votes." 4 

§ 605. It is provided in the revised statutes of Illinois that 
the clerk of the county commissioners' court, taking to his assist- 

1 Peebles *>. Commissioners, 82 N. C. 3 People v. Van Slyck, 4 Cow. 297. 
385. 4 State v. Steers, 44 Mo. 224. 

2 Stat. N. Y. 45sess. p. 274. 



511 

ance two justices of the peace of his county, "shall proceed 
to open returns and make abstracts of the votes in the follow- 
ing manner: * And it shall be the duty of the said clerk of 
the county commissioners' _court immediately to make out a 
certificate of election to each of the persons having the highest 
number of votes." 1 In a case arising under this statute, the su- 
preme court of Illinois held as follows : " This contest, under our 
statute, is an original proceeding, instituted by the contestant for 
the purpose of trying the legality of the election, and not of the 
canvass. It goes behind the canvass and purges the election 
itself. The court, in trying it, is not confined to the poll-books 
as returned, but it can go behind these and inquire, by proof 
dehors, whether the votes, or any of them, were illegal. But the 
canvassers have no right to do this. Theirs is a mere mechanical 
or, rather, arithmetical, duty. They may probably judge whether 
the returns are in due form, but, after that, they can only canvass 
the votes cast for the several candidates and declare the result." 2 
• § 606. The statute of Wisconsin was in these words : " When- 
ever it shall satisfactorily appear that any person has received a 
plurality of the legal votes cast at any election for any office, the 
canvassers shall give to such person a certificate of election, not- 
withstanding the provisions of law may not have been fully com- 
plied with, in noticing or conducting the election, or canvassing the 
returns of votes, so that the real will of the people may not be 
defeated by any informality." 3 Under this statute it was held by 
the supreme court of Wisconsin, as follows : " Whether it would 
have been competent for the legislature, under the constitution 
which delegates all the judicial power of the state to the courts 
of the state, to give to the board of state canvassers judicial 
authority to settle and adjudicate rights of this nature, it is not 
necessary to inquire. They have not given them any such power. 
Their duties are strictly ministerial. They are to add up, and 
ascertain by calculation, the number of votes given for any office. 
They have no discretion to hear and take proof as to frauds, 
even if morally certain that monstrous frauds have been perpe- 
trated. The ninety -fifth section of. this statute gives them no such 
power. * 

1 Rev. Stat. 111. 1856, $>. 25. 4 Attorney-General v. Barstow, 4 Wis. 

2 People v. Head, 25 Ills. 327. 567. 
8 Rev. Stat. Wis. 1849, !c. 6, s. 95. 



512 

§ 607. The revised statutes of Michigan contained the fol- 
lowing provision : " The said board of canvassers, when formed 
as aforesaid, shall proceed to examine the statements received by 
the secretary of state of the votes given in the several counties, 
and make a statement of the whole number of votes given for the 
office of representative in each congressional district, which shall 
show the names of the persons to whom such votes shall have 
been given for said office, and the whole number of votes given to 
each. The said canvassers shall certify such statement to be cor- 
rect, and subscribe their names thereto, and they shall thereupon 
determine what persons have been, by the greatest number of 
votes, duly elected to such offices, and make and subscribe on such 
statement a certificate of such determination, and deliver the same 
to the secretary of state." 1 In a case decided under this statutory 
provision, the supreme court of the state said : " In a republican 
government, where the exercise of official power is but a derivative 
from the people, through the medium of the ballot, it would be a 
monstrous doctrine that would subject the public will and the 
public voice, thus expressed, to be defeated by either the ignorance 
or the corruption of a board of canvassers. The duties of these 
boards are simply ministerial. Their whole duty consists in ascer- 
taining who are elected, and in preserving the evidences of such 
election." 2 

§ 608. It is provided in the revised statutes of Maine as fol- 
lows : " The returns from each town and plantation shall be 
delivered into the office of the clerk of the county commissioners 
on, or before, the first day of the meeting of said commissioners 
next after the said month of September, to be by them opened 
and compared with the like returns from the several towns and 
plantations in such county or registry district, and the person 
having a majority of the votes shall be declared registrar of deeds 
for said county or registry district." 3 The supreme court of Maine, 
in a case which arose under this statute, decided as follows : " The 
canvassers had no power to go beyond the returns of the select- 
men and town clerks, and receive other evidence, and determine 
therefrom that the town meeting was not properly called, and for 
that cause reject the votes of that town." 4 In a case decided 

^ev. Stat. Mich. 1846, p. 51. 3 Rev. Stat. Me. 1841, p. 77. 

2 People v. Van Cleve, 1 Mich. 336. "Bacon v. Commissioners, 26 Me. 498. 



513 

under similar statutory provisions, the supreme court of Minne- 
sota said : " We cannot, therefore, resist the conclusion that the 
duties of the clerk of the board of supervisors, in receiving and 
opening election returns, in canvassing and estimating the votes, 
and in giving certificates of election, are purely ministerial, and 
that no judicial, or discretionary, powers are conferred upon him, 
or the board of canvassers, except, perhaps, so far as to determine 
whether the returns are spurious or genuine, or polled at • estab- 
lished precincts, and in ascertaining from the returns themselves 
for whom the votes were intended." 1 The supreme court of Indi- 
ana, under a similar statute, held as follows : " With regard to 
this point, it may be observed that the duties of both the board 
of canvassers and the clerk, in making the statement, are purely 
ministerial. It is not within their province to consider any ques- 
tions relating to the validity of the election held, or of the votes 
received by the parties voted for. They are simply to cast up 
the votes given for each person, from the proper election docu- 
ments, and to declare the persons who, upon the face of these 
documents, appear to have received the highest number of votes 
given, duly elected to the offices voted for." 2 

§ 609. Statutory provisions, requiring the board of canvassers 
to meet at a time specified, and to " examine the returns of votes 
transmitted to them, and, if any person shall be found to have a 
majority of all the ballots," to give the person elected written 
notice of his election, do not make the canvassers a judicial tri- 
bunal, nor authorize them to decide upon the validity or the fact 
of the election, in any other mode than by an examination of the 
returns made to them, according to law. They are not required, 
or authorized, to hear witnesses, or weigh evidence. They have 
no power to send for persons or papers. When one result appears 
upon the returns, and another is the real truth of the case, they 
can only act upon the former. If they have done their duty, the 
remedy of the person actually elected to the office cannot be 
had through a mandamus. 3 Under a statute, requiring a board of 
district canvassers, consisting of one representative from each 
board of county canvassers, to " c^st up the several county returns, 
and make duplicate returns of all the votes given for such office, 

1 O'Farrall v. Colby, 2 Minn. 186. 3 Luce v. Mayhew, 13 Gray (Mass.), 

2 Brower «, O'Brien, 2 Carter (Ind.) 43. 83. 

33 



514 

in said district, and of the name of the person, or persons, elected," 1 
a certificate was made, setting forth the nnmber of votes shown, 
by the connty returns, to have been cast for the respective candi- 
dates, but adding these words : " and it appearing that fraud and 
bribery had been made use of, in obtaining votes, to so large an 
extent as to vitiate the election, or change the result, we decline to 
certify the election of either of said candidates." It was held that 
this certificate was insufficient ; that the district canvassers were 
bound to certify that the person appearing, by the county returns, 
to have the greatest number of votes, was elected ; and that they 
could be compelled, by mandamus, to sign a proper certificate. 2 
Under a statute requiring the state canvassers to " canvass the 
returns of said election, and determine and declare who shall 
have been elected to any such office, or as such member, as shown 
by such returns," and providing that, " if any such returns shall 
be shown, or shall appear, to be so irregular, false, or fraudulent, 
that the board shall be unable to determine the true vote, for any 
such officer, or member, they shall so certify, and shall not include 
such return in their determination and declaration," 3 it was held, 
by the supreme court of Florida, that the duties of the canvassers 
w r ere purely ministerial, and were subject to the control of the 
court by mandamus. 4 

§ 610. In a statute of Alabama it is declared that the votes cast, 
at certain elections, for candidates for the offices of mayor and 
aldermen, " shall be returned to the existing mayor and council, 
whose duty it shall be, within five days after the election, to count 
the votes, and compare the poll -lists with the registration lists, 
and reject all votes, cast by persons whose names do not appear 
registered, as hereinafter provided ; and to declare, by publication 
in a newspaper published in the city of Opelika, and by posting 
notices, in at least four public places, the name of the person having 
received the greatest number of registered votes, for mayor, and the 
names of the six persons having received the greatest number of 
registered votes for alderman at said election." 5 It was held that 
the duties imposed by this statute were not judicial, but ministerial; 
that, in the performance. of those duties, the mayor and council 

1 Purd. Dig. 288. 3 Stat. Fla. Feb. 27, 1872, s. 4. 

2 Commonwealth v. Emminger, 74 Pa. 4 State v. Canvassers, 16 Fla. 17. 
St. 479. 5 Stat. Ala. March 26, 1873. 



515 

acted as mere canvassers, with no judicial authority to investigate, 
or determine, the validity of the election j 1 that while the can- 
vassers, in such a case, had necessarily to determine whether the 
returns before them were genuine, they had no power to go behind 
the returns, for the purpose of investigating charges of irregularity 
or fraud. 3 

§ 611. The duties of the secretary of the state of Louisiana, in 
the compilation and promulgation of the election returns, are purely 
ministerial. He is to promulgate the result, " as shown by the 
returns." 3 If he make the compilation and promulgation, upon 
other returns than those prescribed by the law, he may be com- 
pelled, by mandamus, to make them over again, in a way to con- 
form strictly to the statute. But the proceeding, in mandamus, 
will only determine the prima facie right to the office. 4 Where 
the statute provided that the secretary of state, in the presence of 
the governor, should open the returns and cast up the votes given 
for all candidates for any office, and should give, to the person 
having the highest number of votes, for member of congress from 
each district, a certificate of election, under his hand, with the 
seal of the state affixed thereto, the majority of the committee held 
that the duties of the secretary were ministerial, and not judicial. 5 
Under statutes requiring that, in all elections, "the names of the 
persons voted for, the number of votes received for each person, 
and the title of the office for which he is proposed, shall be entered, 
in words at length," in the town and city records ; that copies of 
the records shall be transmitted, by the city and town clerks, to 
the clerk of the courts ; that the clerk of the courts shall present 
such copies to the board of canvassers, " and the board shall open 
and examine them, and notify the person chosen of his election," 6 
the duties of the canvassers are wholly ministerial; they cannot 
receive, or consider, evidence of extrinsic circumstances ; but are 
confined to the records of votes returned and laid before them ; 
and mandamus will not lie, to compel them to count, for a candi- 
date, voles containing the initial letter only of his christian name. 7 

'Hudmon v. Slaughter, 70 Ala. 546. 6 Gen. Stat. Mass. c. 7, ss. 15, 17, 25, 

2 lb. .26. 

3 Stat. La. 1877, No. 58, s. 39. 7 Clark v. Board of Examiners, 126 
4 Barbin v. Secretary of State, 32 La. Mass. 282. See also Strong's case, 20 

An. 579. Pick. 487 ; Luce v. Mayhew, 13 Gray, 

5 Switzler v. Dyer, 2 Bart. 777. 83 ; Opinion of Justices, 64 Me. 596 ; 



516 

§ 612. It was provided, in the election law of Mississippi as 
follows : " When the result shall have been ascertained, by the 
inspectors, they shall deliver to the commissioners of election, at 
the court house of the county, a statement of the whole number 
of votes given for each person, and for what office ; and said com- 
missioners of election shall canvass the returns so made to them, 
and shall ascertain and declare the result, and shall, within ten 
days after the day of election, deliver a certificate of his election 
to the person having the greatest number of votes " 1 for any office ; 
and " the statement of the result of the election, at their precinct, 
shall be certified and signed by the inspectors and clerks, and the 
poll-book, tally-lists of voters, ballot-boxes, and ballots shall all 
be delivered, as above required, to the commissioners of election." 2 
It was held, by the supreme court of the state, that the commis- 
sioners of election, in canvassing the returns of any election, made 
to them by the inspectors, had the power, and it was their duty, 
to exclude from the count all illegal ballots counted by the inspect- 
ors, when their illegality was made apparent by an inspection of 
the ballots. 3 The statute of Alabama conferred upon the board of 
county canvassers authority to revise the returns of the votes of the 
several precincts, and, upon sufficient proof, to throw out such 
as in their judgment were illegal or fraudulent. Although this 
is an extraordinary, not to say danger*ous, power, when placed in 
the hands of a board of this character, with such inadequate facili- 
ties for obtaining legal evidence and deciding upon questions of 
fraud, yet the action of such a board, under the statute in ques- 
tion, and in pursuance of the power thereby conferred, is to be 
regarded as prima 'facie correct, and to be allowed to stand as valid 
until shown by evidence to be illegal or unjust. 4 

§ 613. A statutory provision that annually, in November, " there 
shall be one county commissioner chosen, in the manner pre- 
scribed in the fourteenth chapter of the revised statutes, except 
so far as such manner is changed by this act," 5 refers not only to 
the mode of casting the votes, but also to the means of ascertain- 
ing the result, and requires the canvassers to count the votes on 

People v. Ferguson, 8 Cow. 102 ; People J Code Miss. 1880, s. 138. 

v. Seaman, 5 Denio, 409 ; People v. Cook, 2 Id. s. 139. 

14 Barb. 259, and 4 Seld. 67 ; People v. 3 Oglesby v. Sigman, 58 Miss. 502. 

Pease, 27 N. Y. 45 ; People v. Smith, 45 4 Norris v. Handley, Smith, 68. 

id. 772. 6 Stat. Mass. 1854, c. 77, s. 3. 



517 

the day designated in the revised statutes ; and, where the revised 
statutes fix the election on the first Monday in April, and the 
county canvass on the second Tuesday after the first Monday in 
April, the county canvass of votes cast at the November election 
is to be made on the eighth day after the election. 1 The provi- 
sions of the statutes of Massachusetts, relating to the meeting of 
clerks to examine and compare transcripts, and ascertain what 
persons have been elected, are to be strictly observed, and the 
authority of such clerks, to make out certificates of election, 
expires with the time prescribed by statute for that duty. The 
fact that such clerks did not meet, to examine and compare tran- 
scripts, until two days after the expiration of the time prescribed 
by statute, no unavoidable accident, or emergency, preventing a 
meeting, within that time, although it will not invalidate the 
election, will invalidate the return and certificates of the clerks, 
made at such delayed meeting. 3 When the statute requires the 
county canvass to be made at the court house, 3 but, the county 
court being in session, it is made at a private house, in the same 
town, there is, in the absence of fraud, or misconduct, no ground 
for setting aside the canvass. 4 

§ 614. Canvassers, in the exercise of ministerial functions only, 
have no power to canvass, as election returns, any papers not 
duly authenticated, in the mode prescribed by law. An attempted 
canvass, in which the result declared is based upon papers not 
thus authenticated, may be treated as a nullity, by the party 
injured, and, on an application for mandamus, he may insist upon 
a legitimate canvass of the properly authenticated returns. 5 In a 
statute, requiring the judges of election to make a "written state- 
ment, or certificate, of the number of votes cast," the words 
" statement " and " certificate " are equivalent terms, referring to 
the same instrument, and constitute a mandatory provision that 
the instrument shall be signed by the judges of election. And 
canvassers cannot lawfully canvass papers, purporting to be 
returns, which lack the signatures of the judges. 6 If the returns 
of an election be not certified, by the proper officers, they can prove 
nothing, and, when offered in evidence, must be rejected. 7 When 

1 Taft v. Adams, 3 Gray, 126. 5 Simon v. Darham, 10 Oregon, 52. 

2 Stimpson v. Breed, L. & R. 257. 6 People v. Nordheim, 99 111. 553. 

3 Code Tenn. s. 864. 7 McKenzie v. Braxton, Smith, 19 ; Gid- 
4 McCraw v. Harralson, 4 Coldw. 34. dings v. Clark, id. 91. 



518 

the law requires the certificate to be made by three officers, a 
majority at least must sign it, to make it evidence. The refusal, 
or failure, of a majority to sign the return raises a presumption 
that it is not correct. 1 When the precinct canvass and returns 
are made by officers designated in an obsolete statute, and not by 
officers designated in the law in force at the time, the returns can- 
not be canvassed by the county canvassers ; but, upon proof of 
their correctness, they will be accepted by the house of represent- 
atives. 2 When the statute requires the county return to be 
signed by three officers, a return signed by one only is not ad- 
missible as evidence of the result. 3 Under a statutory provision, 
requiring county returns to be signed by two of the three county 
officers, it is not competent for the state canvassers to include, in 
their canvass, returns signed by only one of the three officers. 4 
Where the certificate of the judges of election shows that one can- 
didate had a majority of the votes cast, but that, after the result 
had been declared, satisfactory evidence was produced, before the 
judges, that some of the votes cast for such candidate were illegal, 
and that, these being excluded, the other candidate was elected, 
and declares that the latter was therefore elected, the certificate 
destroys itself. While it asserts the right, it disproves its exist- 
ence. The act of the judges of election, in excluding ballots as 
illegal, after they have been once received and deposited in the 
ballot-box, is unauthorized and void. The candidate, whom the 
ballots show to be elected, is elected so far as the judges are con- 
cerned, and cannot be deprived of his office by their certificate. 
The election lies at the foundation of the right. When there is 
no election there is no right, and the certificate cannot create it. 5 
§ 615. In Wisconsin the county return, if void upon its face, 
is to be rejected by the state canvassers; but, if regular upon its 
face, it must be included in their canvass, however false and fraud- 
ulent it may be in fact. 6 A tabulated statement of the votes, by 
precincts, accompanying the return, is no part of the return re- 
quired by law, and cannot be used to contradict the return itself. 7 
When the precinct inspectors are only authorized to make their 



'Niblack v. Walls, Smith, 101. 
2 Fenn v. Bennett, id. 592. 
3 Niblackv. Walls, id. 101. 
4 Norris v. Handly, id. 68. 



5 Hartt v. Harvey, 10 Abb. Pr. 321. 
State v. Canvassers, 36 Wis. 498. 
7 lb. 



519 

returns to the county canvassers, they have no right to transmit 
copies of their returns to the state canvassers ; nor can such copies, 
if transmitted to the state canvassers, be lawfully considered by 
them as evidence affecting their determination of the result. The 
state canvassers are required to make their determination and 
statement of the result of the election, from the certified state- 
ments of the county canvassers alone ; and they have no authority 
to receive, or act upon, any other evidence. Nor can they receive, 
or consider, additional, or supplementary returns, made by the 
county canvassers, at a time, or in a mode, not authorized by law. 1 
When a paper, offered as a precinct return, is not attested by any 
person, describing himself as the town clerk, or appearing upon the 
paper to be such town clerk, the canvassers are not required to 
ascertain, or know, that the person signing the paper was, in fact, 
the town clerk. 2 Under a statutory requirement that the state 
board of canvassers " shall, upon the certified statements of elec- 
tions, made by the boards of county canvassers, proceed to examine 
and make a statement of tire whole number of votes given, at any 
such election, for the offices" 3 designated, the state canvassers 
can only act upon the certified statements of the county canvass- 
ers, returned by the several county clerks to the secretary of state, 
and have no authority to procure corrected returns, or to go behind 
the returns thus made, or to receive testimony, aliunde, either to 
sustain, or invalidate, them. 4 

§ 616. When the statute requires the returns made by the board 
of county canvassers, to the governor and secretary of state, re- 
spectively, to be duplicates, and requires these returns to be trans- 
mitted, by mail, addressed to the governor and secretary of state, 
respectively ; but does not expressly declare the returns illegal, or 
require the canvassers to reject them, if not so made out and trans- 
mitted, the facts that the two returns differed, in date, and were 
sent by a private messenger, in an envelope addressed to the con- 
testant, and that the envelope was opened by a private individual, 
and was by him afterwards delivered, with its contents, into the 
hands of the state canvassers, will not destroy the validity of 
the returns or warrant their rejection by the state canvassers, if 

1 Attorney-General v. Barstow, 4 Wis. 3 Eev. Stat. Wis. 1858, c. 7, s. 80. 
567. 4 State v. Canvassers, 36 Wis. 498. 

2 Luce v. Mayhew, 13 Gray (Mass.) 83. 



520 

two of the three county canvassers shall, in their depositions, 
identify them as true copies of returns made out by themselves. 1 
Army returns, required by law to be presented to the prothono- 
taries of the respective counties and to be delivered, by them, to 
the county judges of election, by the tenth of November, to be 
used in making up their returns, but in fact received after the 
tenth and before the meeting of the district judges, on the fifteenth, 
were properly canvassed by the district judges. And, under this 
statute, it was illegal to canvass papers lodged with the secretary 
of state, on the eighteenth of January, after the district judges 
had made their return to the governor, such papers purporting to 
consist of a regimental return and tally paper, but not accom- 
panied by a list of the voters' names, or a certificate of their 
examination by the county judges. 2 

§ 617. The failure of the officers of one subdivision of an election 
district to make returns will not invalidate the election, unless it can 
be shown that the votes of that subdivision will change the result. 3 
Where the clerks of the four towns, composing a representative 
district, did not all meet, to compare records and ascertain the 
result, but, owing to a storm, one of the town clerks failed to 
appear, so that the vote of that town was not counted, or canvassed, 
in preparing the certificate of election, it was held that the certifi- 
cate issued was. void ; and the result of the election was ascer- 
tained, by canvassing the votes cast in the district. 4 The fact 
that polls were not opened, at a precinct, duly established by law, 
will not vitiate the election of county officers, without proof that 
the general result was thereby affected ; and the burthen of show- 
ing this rests upon those who contest the county returns. 5 The 
fact that the return of a precinct did not arrive at the office of 
the secretary of the territory, until a few days after the canvass 
was completed, was held not to be a sufficient ground for the re- 
jection of the vote. 6 A statutory provision that the return of an 
election shall be made to the secretary of state within thirty days, 
is directory, and votes subsequently returned will be counted. 
Otherwise, the will of the people might be defeated by a fraudulent 
officer, or by accidental loss. 7 An officer,. who obtains his office 

1 Niblack v. Walls, Smith, 101. 4 Hillman v. Flanders, L. & K. 338. 

2 Bichards' case, C. & H. 95. 6 McGraw v. Harralson, 4 Coldw. 31. 

3 Heath's case, 3 Hill (N. Y.), 42; 6 Todd v. Jayne, 1 Bart. 555. 
State v. Canvassers, 17 Fla. 29. 7 Brockenbrough v. Cabell, id. 79. 



521 

by virtue of a certificate, based vipon a county canvass from which 
the return of one precinct was illegally excluded, will be ousted on 
an information in the nature of a quo warranto. 1 

§ 618. Under a statutory provision that " in all cases, where a 
return is defective, by reason of any informality, a duly attested 
copy of the record may be substituted therefor," when the return 
is defective, for want of the signature of the city clerk, and a duly 
attested copy of the record of the election is offered, as a substi- 
tute, the canvassers are under a legal obligation to receive the 
substitute. 2 Where it was provided, by law, that the town clerk 
should make a record of the vote as counted and announced by 
the selectmen, in his presence, and transmit a copy thereof to the 
secretary of state, and that, if the clerk should make " an incorrect, 
or insufficient return," of the vote, the canvassing board might 
" require said clerk, at his own expense, to come in and amend 
said record, or return, according to the facts of the case," it was 
held that the clerk was only authorized so to amend his return as 
to make it correspond with the vote as actually canvassed and 
announced by the selectmen in his presence. 3 In Missouri the 
clerk of the county court must certify, to the secretary of state, 
the vote in the several precincts, as it is certified to him by the 
judges and clerks of election. He has no right to refer to the 
poll-books or tally-sheets transmitted by them, for the purpose of 
verifying, or correcting, their certificates. If they have made a 
mistake, in casting up the votes, the error can only be corrected 
by the tribunal authorized to determine contested elections. 4 In 
a statutory enactment that, "if, in the canvass of votes, any returns 
shall be found to be so informal, or incomplete, that the board 
cannot canvass them, they may dispatch a messenger to the in- 
spectors, who made the returns, commanding them to complete 
the returns, in the manner specified by law, and such corrected 
returns shall forthwith be returned to the canvassers," 5 the word 
may means must. 6 The statute of Massachusetts, empowering 
aldermen to count precinct returns, 7 is not applicable to the elec- 
tion of representatives in congress 8 

1 People v. Van Slyck, 4 Cow. 297. See 5 Stat. Wis. 1871, c. 7, s. 89. 
Gibbons v. Stewart, 2 Brewst. 1, "State v. Canvassers, 36 Wis. 498. 

2 Bounds c. Smart, 71 Me 380. 7 Stat. Mass. April 26, 1876, s. 4. 

3 Opinion of the Justices, 53 N. H. 640. * Dean v. Field, 1 Ells. 190. 

4 State v. Trigg, 72 Mo. 365 ; Mayo v. 
Freeland, 10 id. 629. 



522 

§ 619. There is a conflict of authority on the question whether 
canvassing officers, whose duties are, under the law, purely min- 
isterial, will be compelled, or permitted, to determine and declare 
the result, and issue a certificate of election to a particular can- 
didate, shown by the returns to have been elected, after a 
determination of the result and a declaration thereof have been 
made, and a certificate or commission issued in favor of a candi- 
date not shown by the returns to have been elected. On the one 
hand, it is held that, when canvassers have once performed their 
duty and determined the result of the election, according to law, 
they axe fundi officio ; that a second canvass, whether made before, 
or after, the expiration of the time limited for canvassing the votes, 
is void 5 1 and that the board, having adjourned, sine die, after the 
canvass, cannot reassemble, nor be compelled, or authorized, 
by mandamus, to reassemble, or to take any further action in the 
case. 2 But, on the other hand, it has been repeatedly held that 
canvassing boards, having once performed the duty prescribed by 
law, were permitted, and could be compelled, to recanvass the 
votes and correct errors in the original canvass, not only before, 
but after, the expiration of the time limited, by law, for the com- 
pletion of the canvass. 

§ 620. It was provided, in a statute of New York, that the pre- 
cinct returns of the municipal election, for the city of Albany, 
should be filed in the office of the clerk of the common council, 
within twenty-four hours after the completion of the precinct can- 
vass ; and the statute contained the following clause : " and the 
common council, at its meeting thereafter, shall canvass such re- 
turns, and determine and declare the result." 3 At its first meet- 
ing, after an election of mayor and common council, the common 
council, then in office, proceeded to canvass the precinct returns, 
and to determine and declare who was duly elected to the office 
of mayor, and made and filed a certificate of that determination. 
The newly-elected common council recanvassed the votes for 
mayor, and determined and declared that another candidate was 
duly elected, and made and filed a certificate to that effect. Upon 

1 Bowen «. Hixon, 45 Mo. 341 ; Hartt 2 Clark v. Buchanan, 2 Minn. 346. 

«. Harvey, 32 Barb. 55 ; Hadley v. Al- 3 Stat. N. Y. 1851, p. 106, s. 11. 

bany, 33 N. Y. 603 ; Ramsay v. Calaway, 
15 La. An. 464. 



523 

the question of the title of the respective claimants of the office, 
the supreme court held that the duty of the common council, in 
making the first canvass, was purely ministerial, and restricted to 
an estimate of the precinct returns ; that, in receiving affidavits, 
tending to show fraudulent practices, at the polls, and in refusing 
to canvass the returns of two precincts, on that ground, they had 
assumed to exercise a judicial power, which the legislature had 
not vested in them ; but that, having jurisdiction to make the can- 
vass, their certificate constituted a title to the office, which was valid 
until set aside by legal proceedings ; that having canvassed the 
returns and declared the result their power was exhausted ; that 
their successors had no authority to revise their action, and their 
attempt to recanvass the returns was void ; that the first determi- 
nation, however erroneous, had constituted jyra?i<2 facie evidence 
of the election of the candidate, in whose favor it was made, and, 
having acted upon that evidence, qualified and entered upon the 
discharge of the duties of the office, he became mayor cle facto, 
and could not be displaced, except by an action brought for that 
purpose ; and that, he being mayor de facto, the other claimant, 
whatever his right, could not be mayor in fact, at the same time, 
and did not derive a colorable title to the office from the determi- 
nation of the newly-elected common council. 1 

§ 621. Under a statute making it " the duty of the mayor and 
aldermen to meet together, within two days after every such elec- 
tion, and examine and compare all the said returns, and, thereupon, 
to make out a certificate of the result of such election, to be signed 
by the mayor and a majority of the aldermen, and also by the 
city clerk," 3 which certificate was to be sealed up, and to be trans- 
mitted to the secretary of the commonwealth, within ten days after 
the election, it was held that, when the mayor and aldermen had 
returned a certificate of the votes, cast at an election of represent- 
ative in congress, to the secretary of the commonwealth, and, 
before the expiration of ten days from the day of the election, 
discovered an error in the return, it was competent for them to 
amend it at any time within the ten days. 3 By law the county 
returns were to be made to the governor, within twenty days after 
the first Monday of October, the day of the election ; and the 

3 Morgans. Quackenbush, 22 Barb. 72. 3 Commonwealth v. Mayor, Thach. 298. 

2 Charter Boston, 1821, c. 110, s. 23. 



524 

governor was to canvass the returns, and proclaim the result, 
within five days thereafter. On the 27th of November, 1804, after 
the governor had issued his proclamation in favor of the sitting 
member, the votes of three counties were returned to him, whereby 
the result was changed. It was held, by the committee and by 
the house, that these votes were to be counted by the house, 
under the constitution, and the seat was awarded to the contestant. 1 
§ 622. Under a statute, conferring upon the county canvassers 
power to determine primarily the result of a county election, and 
upon the state, canvassers power to make a final and conclusive 
determination of such result, the failure of the state canvassers 
to make a proper determination has the effect to leave that of the 
county canvassers final and conclusive. 3 When the county can- 
vassers are empowered to determine primarily the result of a 
county election, and the state canvassers are empowered, as a 
revisory tribunal, to make a final determination of the result, an 
original determination, by the state canvassers, in the absence of a 
determination by the county canvassers, is void. 3 If the law, 
authorizing an election, do not provide for the determination of the 
result, the courts will do so on proper application. 4 The canvass 
of the board of canvassers is prima facie correct, but may be im- 
peached by testimony. 5 When the result of the canvass of votes, 
cast at a legal election, as declared by the canvassing officers, shows 
the election of a certain person to an office, and he qualifies within 
the time and in the manner prescribed by law, he is entitled to the 
office, as against every other person laying claim thereto, until 
the result so declared is set aside, by the judgment of some com- 
petent court, in a direct proceeding for that purpose ; and every 
other person, who assumes to exercise the duties of such office 
(as by holding over after the expiration of a former term), must be 
regarded as a mere intruder, or usurper, in any proceeding against 
him to compel him to deliver up the books and papers pertaining 
thereto, or to recover moneys, or other property, in his hands, 
which he is required, by law, to deliver over to his successor in 
office. The applicability of this rule is not affected by the circum- 

1 Spalding v. Mead, C. & H. 157. This 8 State v. Nerland, 7 S. C. 241. 
subject will be more fully considered in 4 People v. Warfield, 20 111. 159. 

the chapter on mandamus. 5 Attorney-General «. Barstow, 4 Wis. 

2 State v. Walker, 5 S. C. 263. 567. 



525 

stance that the predecessor of the officer elect was himself a candi- 
date for re-election, and, on the ground of some alleged error, or 
fraud, in the vote, or the canvass, or in the declaration of the 
result, claims that he himself was duly chosen. Such claimant, 
not having, by mandamus, compelled the canvassers to give him 
the certificate of election, cannot retain the office, until ousted in 
an action in the nature of a quo warranto, but must surrender 
the office and proceed himself, by such an action, to recover it. 1 
§ 623. Where the returns were first canvassed by the secretary 
of state, in presence of the governor, on the 14th of December, 
1872, but no proclamation of the result was made, or certificate 
issued, until February 18, 1873, it was held that the service of a 
notice of contest, on the 13th of March, 1873, satisfied the statutory 
provision requiring the notice of contest to be served within thirty 
days after the determination of the result of the election. 2 It was 
provided, in the code of the state of Tennessee, that the governor 
and secretary of state should, as soon as the returns were received, 
in the presence of such electors as might choose to attend, compare 
the votes for certain officers, including representatives in congress, 
and declare the persons receiving pluralities of the votes duly 
elected. The majority of the committee were inclined to the 
opinion that it was the intent of the law that the governor and 
secretary of state should personally meet, and, in the presence 
of such electors as might choose to attend, make a comparison of 
the votes ; and they held that, however this might be, it was clear 
that the governor and secretary of state were the officers to deter- 
mine the result contemplated in the provision of the act of congress 
of February 19, 1851, relating to the service of notice of contest, 
and until they had made a comparison of the votes and definitely 
acted, in the case, the result of the election could not be deter- 
mined in such manner as to bring a contestant within the pro- 
visions of that statute. 3 In a statutory provision that the result 
of an election shall be determined by "a majority of the voters of 
the county," the majority intended is not a majority of all persons 
entitled to vote, in the county, but only of those who, in fact, cast 
their votes at the election. 4 

3 Supervisors v. O'Malley, 46 Wis. 35. 4 Kailroad Co. v. Davidson, 1 Sneed, 

2 Gunter v. Wilshire, Smith, 233. 692; People v. Warfield, 20 111. 163; 

3 Sheafed. Tillman, 2 Bart. 957. See People v. Garner, 47 id. 246; People v. 
notice of contest, post §§ 1002-1005. Wiant, 48 id. 263 ; Bridgeport v. Kail- 



526 

§ 624. A statute, providing that, " when two persons shall have 
an equal number of votes, the returning officer shall have the 
casting vote, but shall not vote in any other case whatsoever," is 
valid, under the constitution of the state of Alabama. 1 But when 
two candidates, for the office of representative in congress, had the 
same number of votes, and the governor and council of Maryland, 
assuming to act under a state law, " proceeded to decide between 
them which should be the representative," and gave a certificate 
of election to the sitting member, it was held that the proceeding 
was not warranted by the constitution of the United States, which 
required representatives to be chosen by the people, and conferred 
, upon the house exclusive power to judge of the elections, returns, 
and qualifications of its members ; and that the certificate was not 
admissible as evidence of the right of the sitting member to the 
seat. 2 The statute contained the following provision : " If the 
requisite number of county, or precinct, officers shall not be elected 
by reason of two or more persons having an equal, and the highest, 
number of votes, for one and the same office, the clerk, whose 
duty it is to compare the polls, shall give notice to the several 
persons, so having the highest, and an equal, number of votes, to 
attend, at the office of the county clerk, at a time to be appointed 
by said clerk, who shall then and there proceed publicly to decide, 
by lot, which of the persons, so having an equal number of votes, 
shall be declared duly elected. And the said clerk shall make, 
and deliver to the person thus declared duly elected, a certificate 
of his election, as hereinbefore provided." 3 It was held that, 
under this statute, where two or more candidates received the 
highest, and an equal, number of votes, for the same office, neither 
was elected, nor could either lawfully exercise the duties of the 
office, until a decision had been made, by lot, and a certificate of 
the result given, according to law. 4 Two candidates for the house 
of representatives of the United States, having received the same 
number of votes, waived their respective claims to the seat. There- 
upon the governor ordered a special election. The house subse- 
quently declined to entertain a contest for the seat, under the first 

road Co. 15 Conn. 475 ; St. Joseph v. : State v. Adams, 2 Stew. 231. 

Kogers, 16 Wall. 644 ; Talbot v. Dent. 2 Eeed v. Cosden, C. & H. 353. 

9 B. Monr. 526 ; State v. Mayor, 27 Mo. 3 Gen. Laws, Oregon, 573, 36. 

272. 4 State v. McKinnon, 8 Oregon, 493. 



527 

election, on behalf of the candidate who was unsuccessful at the 
second election. 1 

§ 625. The official certificate of election confers a prima facie 
right to the office. 2 The certificate though only prima facie evi- 
dence of title to the office, in a contest, is conclusive evidence, as 
against strangers. 3 But the election is the basis of the right to 
the office. A certificate is not essential to enable the party chosen 
to take it. If the inspectors neglect or refuse to give the certifi- 
cate, the courts will, nevertheless, give the office to the party 
entitled. 4 It is competent for the legislature to prescribe the 
manner in which the result of an election shall be determined and 
declared. Until the result is determined and declared, either in 
the manner so prescribed, or by the adjudication of a tribunal of 
competent jurisdiction, the election is not complete ; and the can- 
didate is not entitled to assume the office. 5 A statute, requiring 
an officer, or board, to certify, or proclaim, the result of an elec- 
tion, or to issue a commission, within a prescribed time, is directory, 
and not mandatory ; and such acts are not invalid, merely because 
performed after the expiration of the time limited. 6 Under a 
statute, declaring that, " the persons having the greatest number 
of votes, for the respective offices to be filled by general elections, 
by general ticket for the whole city, and those having the greatest 
number of votes, for the offices to be filled by the electors of the 
several election districts, or wards, shall be declared duly elected ; 
and the common council shall make and subscribe certificates 
thereof, in duplicate, one of which shall be filed with the city clerk, 
and entered in the book of record of his proceedings, and the 
other with the clerk of the county of Albany," 7 the declaration 
and certificate of the common council are necessary, to complete 
the election of members of the common council, and to qualify 
them to enter upon the duties of their office. Until the election 

1 Citizens v. Sergeant, C. & H. 516. 4 Hartt v. Harvey, 19 How. Pr. 245; 

2 State v. Churchill, 15 Minn. 455; People v. Peck, 11 Wend. 604 ; Peoples. 

State v. Gibbs, 13 Fla. 55. Kilduff, 15 111. 492. 

3 Commonwealth v. Commissioners, 5 5 People v. Crissey, 91 N. Y. 616. 

Kawle, 75: People v. Cook, 8 N. Y. 67; 6 Heath's case, 3 Hill, 42 ; People v. 

People v. Vail, 20 "Wend. 12 ; People v. Allen, 6 Wend. 486, and cases cited ; 

Jones, 20 Cal. 50 ; Hunter v. Chandler, Colt v. Eves, 12 Conn. 243, and cases 

45 Mo. 453 ; Hadley v. Albany, 33 N. Y. cited. 

603 ; Peyton v. Brent, 3 Cr. C. C. 434. 7 Stat. N. Y. 1869 ; c. 912, title 3, s. 10. 



528 

is thus completed, and the new members of the board of aldermen 
become duly qualified, the old members remain in office, and 
retain their legal authority to make appointments of municipal 
officers. 1 A member of the house of representatives of the United 
States was admitted to a seat, without a governor's certificate, on 
proof of facts. 2 The refusal of the governor to grant a certificate 
of election to one entitled to it will not deprive him of the seat. 
He may prove his election by other evidence. 3 Where two per- 
sons were returned to the house of representatives of Massachu- 
setts, by separate returns, from a town entitled to only one 
representative, neither was permitted to vote until the determina- 
tion of the contest. 4 

§ 626. The certificate of an officer, charged by law with the duty 
of ascertaining, declaring, and certifying the result of an election, 
is conclusive evidence of the result, except in a statutory or parlia- 
mentary contest, or in a qno warranto, or information in the nature 
of a quo warranto, instituted to determine the right to the office ; 
and, in all such proceedings, it is pi^ini a facie proof of the result. 
This rule is not affected by the fact that -the election is contested, by 
a prior incumbent of the office, authorized, by law, to hold over until 
the election and qualification of his successor. 5 In the absence of 
express provisions of the state law, authorizing any officer to certify 
to the due election of members of congress, a certificate, under the 
great seal of a state, signed by its chief executive officer, would 
constitute sufficient credentials, within the meaning of the statute 
of 1867. 6 When the contestant charged that the sitting member's 
certificate of election was a forgery, and the sitting member charged 
that the contestant's had been obtained by bribery, it was held that 
these certificates, having been considered by the house in deter- 
mining who was, prima facie, entitled to hold the seat, pending 
the contest, were immaterial on the hearing of the merits of the 
case. 7 In New Jersey, statements accompanying the official cer- 

1 People v. North, 72 N. Y. 124. wealth v. Baxter, 35 Penn. St. 263 ; State 

2 Kichards' case, C. & H. 95. v. Governor, 1 Dutch. 331 ; People v. 

3 Clement's case, 1 Bart. 366. Miller, 16 Mich. 56 : State v. Johnson, 
4 McFarlan v. Dench, C. S. & J. 26 ; 17 Ark. 407. 

Harwich case, id. 38; Durfee's case, "Clark's case, Smith, 6; Giddings v. 

id. 56. Clark, id. 91. 

5 Moulton 0. Beid, 54 Ala. 320 ; Kerr 7 Morton v. D.aily, 1 Bart. 402. 
v. Trego, 47 Penn. St. 292; Common- 



529 

tificate of the board of county canvassers, constitute no part of 
their return. They are unauthorized by law and constitute no 
ground for the issue of a commission. 1 The minutes of county 
canvassers are not admissible in evidence, before the committee 
of elections of the house of representatives of the United States, 
for the purpose of showing the illegality of the vote of a particu- 
lar precinct ; nor are statements of- grounds on which the county 
canvassers rejected the vote of a particular precinct, made by them, 
in their official certificate, or return, of the vote of the county. 2 
A certificate of a board of canvassers, in which they declare that 
certain candidates were elected, but, at the same time, state facts 
which disprove their declaration, and show that such candidates 
were not elected, is not prima facie evidence of the title of the per- 
sons certified to be elected. 3 



1 State v. Governor, 1 Dutch. 331. 

2 Finley v. Walls, Smith, 367. 

8 Hartt v. Harvey, 19 How. Pr. 245. 

A case involving importaut questions 
relating to the validity and effect of a 
governor's certificate, as prima facie 
evidence of title to a seat, in the house 
of representatives of the United States, 
was decided in the forty- second congress. 
The certificate was in the following form : 

" Governor's office, Austin, November 
15, 1874. This is to certify that, on 
comparison of the returns of votes cast 
at an election, held in the third congres- 
sional district of the state of Texas, on 
the third, fourth, fifth, and sixth of 
October, A. D. 1871, provided for by 
joint resolution of the legislature of said 
state of Texas, approved May 2, 1871, I 
find that the Hon. W. T. Clarke was 
duly elected to represent the said con- 
gressional district of the state of Texas, 
in the congress of the United States, for 
the term commencing on the 4th day of 
March, A. D. 1871, and ending on March 
3, 1873. In giving this certificate I wish 
to call attention to the attached certi- 
fied statement of the vote, cast in the 
third district, as returned, with grounds 
for rejecting certain returns. This is 
explanatory of my reasons for giving the 
foregoing certificate of election. Accord- 
ing to my opinion, the numerous irregu- 
larities and instances of fraud and 
violence, during the election in the third 
district, reported and proved to my satis- 

34 



faction, would rather warrant a new 
election, than the giving of a certificate 
to either party. I have felt constrained 
by my interpretation of the provisions 
of the state law, on the subject of elec- 
tions, to reject many returns, and would 
have thought it more just to regard the 
election as a nullity ; yet the act of con- 
gress of May 31, 1870, section 22. seems 
to require that I should give a certificate 
of election to one of the candidates. In 
testimony whereof I have caused the 
great seal of the state to be affixed, at 
the city of Austin, the date herein first 
above written. (Seal. J Edward J. Davis, 
Governor." 

The statements attached were to the 
effect that more than six thousand of the 
returned votes were rejected, by the 
governor, on one or another of the fol- 
lowing grounds: that the tickets were 
marked with numbers, in violation of 
law : that persons of foreign birth had 
been registered and permitted to vote, 
without legal proof of naturalization ; 
that violence, intimidation, and armed 
disturbance had interfered with the 
purity of the election : that persons had 
been registered by proxy : that two bal- 
lot-boxes had been used ; and that votes 
had been cast by persons who had de- 
clared their intention to become citizens 
before a clerk, in vacation, and not in 
term time, before a competent court. 



530 



§ 627. The omission of the return required, by law, to be 
indorsed on the certificate of election of a representative, in the 



Under the statute it was the duty of 
the governor, attorney-general, and sec- 
retary of state, constituting the board 
of state canvassers, to compile state- 
ments of the vote, first from all places 
where there had been a fair, free, and 
peaceable election. Then, if any official 
report of violence, intimidation, or cor- 
ruption, had been received, from any 
judge of election, or registrar, they were 
to ascertain whether the facts so re- 
ported, if proved, would affect the result. 
If they would not affect the result, they 
were to proceed to canvass and compile 
the returns from such voting place, as if 
no such report had been made. If they 
would affect the result the state canvass- 
ers were to take further testimony, and 
to have power to send for persons and 
papers, and, whenever such illegalities 
should be shown to have occurred, at 
any precinct, sufficient in extent materi- 
ally to affect the result, they were not 
to canvass, or compile, the statement of 
the vote for that precinct, but were to 
exclude it from their returns. 

The statute contained also the follow- 
ing provision : 

" As soon as possible, after the expi- 
ration of the time of making the returns 
of the election for representatives in con- 
gress, a certificate of the returns of the 
election, for such representatives, shall 
be entered on record, by the secretary 
of state, and signed by the governor, and 
a copy thereof, subscribed by said offi- 
cers, shall be delivered to the persons so 
elected, and another copy transmitted to 
the house of representatives of the con- 
gress of the United States." 

It did not appear that any report of 
violence, intimidation, or corruption, 
had been made to the state canvassers, 
by any judge of election, or registrar. 
The minority of the committee were of 
the opinion that the provisions of the 
statute, authorizing the canvassers to 
reject votes, on account of violence, in- 
timidation, and corruption, were not 



applicable to the election of represent- 
atives in congress ; that the canvassers 
would have had no authority to reject 
any votes in this case, even if reports 
had been made by judges of elections, 
or registrars, according to law ; that it 
was not shown by the credentials that 
any such reports were made; but, on 
the contrary, was admitted by the parties 
that no such reports had in fact been 
made by any judges of election, or regis- 
trars ; and that, therefore, the rejection 
of the votes was, for an additional rea- 
son, illegal. But the majority of the 
committee in their report, which the 
house adopted, by a vote of 102 to 78, 
set forth their conclusions as follows : 

"It was then, in our judgment, the 
duty of the secretary to open the returns 
of the local officers, to make a table of 
the returns, and to put the originals back 
in the envelopes. This is to be done in 
the presence of the governor and attor- 
ney-general. A certificate of the returns 
is then to be entered, by the secretary, 
on record, signed by the governor, and 
a copy, signed by both secretary and 
governor, to be delivered ' to the person 
so elected.' The attorney-general is re- 
quired to be present at the opening, but 
not to sign the returns. The document 
produced by Mr. Clarke, and referred by 
the house to the committee, is precisely 
such a document. It is signed by the 
governor and secretary, declares Mr. 
Clarke to be duly elected, states that it 
is a document on record in the secre- 
tary's office, and contains the tabulated 
statement of returns required by law. 
It is true it does not state that the attor- 
ney-general was present, when the local 
returns were opened, and it is not re- 
quired to state this by the law. The 
certificate of the returns is all that is to 
go on the record. It is true also that 
it shows that some local returns are 
rejected : bat these are all rejected for 
reasons which, by the express provisions 
of law, it was made the duty of these 
officers to weigh and act upon, except in 
the case of Brazos county, which does 
not affect the result. It is true also 
that it does not appear that, in investi- 
gating the allegations of violence and 



531 

legislature of Massachusetts, 1 showing the due notification and 
summons of the representative elect, does not affect the validity 
of the election, or of the certificate. 2 Under a constitutional pro- 
vision, that " no county seat shall be removed, until the point, to 
which it is proposed to be removed, shall be fixed by law, and a 
majority of the voters of the county shall have voted in favor of 
its removal to such point," a certificate of the clerk, which shows 
the number of votes cast for and against the removal, but does not 
show the whole number of votes cast at the election, is not, of 
itself, evidence that the proposition is carried, if votes were cast, 
at the same time, for candidates for public offices ; but resort may 
be had to the returns of the judges and clerks of the election, to 
ascertain whether those voting for removal were a majority of all 
those who voted at the election. 3 

§ 628. In England the return is the authoritative document by 
which the returning officer records the result of the election. 
Formerly the return was made by indenture ; but now it is made 
by a certificate of the names of the members elected, indorsed, by 
the returning officer, on the writ of election. 4 In cases of Irish 
elections, the number of the votes, given for each candidate, is 
also indorsed upon the writ. 5 The returns of members elected to 
the house of commons are made to the clerk of the crown in chan- 
cery, 6 who upon, or before, the meeting of parliament, delivers to 
the clerk of the house of commons a book containing the names 
of the members returned. 7 This book is sufficient evidence of 
the election and returns of members, to entitle them to be sworn. 8 
When a member is elected, after a general election, the clerk of 
the crown sends, to the clerk of the house, a certificate of the 

intimidation, the state officers proceeded whom the law of the state has imposed 

in the mode pointed out by the law; but the duty of ascertaining and decjaring 

it does not appear that they did not. It the result." Clarke's case, Smith, 6. 
is not necessary that they should record, 

or certify, how they proceeded. The 1 R ey - Stat. Mass. c. 5, s. 8. 

maxim, omnia rite acta presumuntur , is 2 JReportof Committee, C. S. & J. 541. 

clearly applicable in a case of this sort. 3 People v. Wiant, 43.111. 263. 

Few, if any, of the credentials of the 4 oc e oc T7 - , OD , .. „ -,-. 

V i \x. x. u v. *u 35 & 36 Vict. c. 33, rule 44, & Home 

members of the house, show how the ' ' 

officer, who certified them, proceeded, Off. Abst. s. 45. 

under the state laws, in ascertaining the 5 1 Geo. 4, c. 11, s. 4 ; 4 Geo. 4, c. 55, 

fact which he declares. It is enough for s# 71 

a prima facie case if the certificate 60 r , oc T7 - , 00 , or7 An 

* f J . u nr. *., . , 35 & 36 Vict. c. 33, rules 37-40. 

came from the proper officer of the state ' 

and clearly shows that the person claim- May Pari. Pr. 187. 

ing under it has been adjudged to be * Id. 203. 

duly elected by the official, or board, on 



532 

return received in the crown office ; and this certificate being pro- 
duced, the member is sworn. But " although the return of the 
indenture of the crown office has always been required, by the 
house, as the best evidence of a member's title to be sworn, yet the 
absence of that proof cannot affect the validity of the election, or 
the right of a person, duly elected, to be held a member of the 
house. 1 The return of a member of parliament is not complete, 
until the writ, with the certificate of the returning officer indorsed 
thereon, reaches the hands of the clerk of the crown in chancery, 
so that he may act upon it. 2 

§ 629. Under a statute providing that " the said inspectors shall 
complete the said canvass, on the day subsequent to the closing 
of the poll, or sooner, and, thereupon, shall set down, in writing, 
the names of the several candidates for the respective offices, with 
the number of votes for each, and shall, thereupon, certify and 
declare who have the majority of votes for each respective office, 
and shall subscribe their names thereto," 3 the following certificate 
was made by the ward inspectors : " We have received returns 
from the several districts of the said ward, copies of which returns, 
certified by us, are hereunto annexed. It is impossible for us to 
declare what persons were, by the greatest number of votes, elected, 
by reason of lawless violence committed upon the inspectors of 
the first district, whilst in the act of counting the ballots, and the 
dispersion of the ballots, before they were counted, the history 
of which is contained in the return of said inspectors, a copy 
whereof is hereunto annexed." To this was attached the certificate 
of a majority of the inspectors, detailing the reasons of their failure 
to make a return. Regular returns were made from three of the 
four districts, and showed a majority of votes in favor of the 
relators. It was held that the return was a substantial compliance 
with the requirements of the statute, although the majorities in the 
three precincts, or districts, were not expressly declared in the 
certificate ; and that the persons thus appearing to have been 
elected officers of the ward were entitled to qualify as such. 4 Where 
the local option law requires the clerk of the circuit court to make 
proclamation of the result of the election, but does not prescribe 
the form, or mode, of such proclamation, a verbal proclamation, 

1 May Pari. Pr. 203. 3 2R.L. N. Y. 1813, p. 348, s. 11. 

2 Hurdle v. Waring, 9 L. K. C. P. 435. 4 Heath's case, 3 Hill, 42. 



533 

by the clerk, at the court-house door, " that the local option law 
has carried and that the majority of the votes are against the sale 
of intoxicating liquors," is a sufficent compliance with the law. 1 

§ 630. When the clerks of the four towns composing a represent- 
ative district did not meet, on the day following the election, to 
compare transcripts of the records of votes, and ascertain who 
was elected, as required by law, but two only of the four met, and 
signed a certificate in blank, which, a few days later, was signed 
by another of the clerks, who called and left his transcript, and 
afterwards the fourth clerk appeared, and, with the aid of the 
clerk having possession of the certificate, filled the blanks from 
the returns of the several clerks, it was held that the return and 
certificate, so made, were invalid and must be set aside. 3 Where 
a town and district, or two towns, are united, by an act of the 
legislature, for the purpose of electing representatives, in the 
legislature of Massachusetts, the certificate of a member must be 
signed by a majority of the selectmen of both, or it will be void. 
But, in such case, if the selectmen of one of the towns, or of the 
district, improperly refused to sign the certificate, the house was 
empowered, by statute, 3 to give validity to any certificate which 
should be " to their acceptance." 4 An election of a member of the 
house of representatives of Massachusetts, at one town meeting, 
cannot be superseded by the election of another, at a second 
meeting. 5 

§ 631. The party, who receives the legal certificate of election, 
and duly qualifies, is entitled to hold the office, pending a contest. 6 
One who has received a certificate of election to the office of town- 
ship trustee, and has qualified, by giving bond and taking the 
oath of office, is entitled to the office, as- against an incumbent 
whose term has expired, though some other person may be prose- 
cuting a contest of the election. 7 In case of a double return to 
the house of commons of England, both members may claim to 
be sworn, and may take their seats ; but neither can vote, until the 
determination of the contest. One of the orders regularly adopted, 
at the commencement of every session of the house, is " that all 

1 Mackin v. State, 62 Md. 244. 5 Benson's case, C. S. & J. 151. 

2 Haynes v. Hillis, L. & K. 300. 6 Swinburne v. Smith, 15 W. Va. 483. 

3 Stat. 1795, c. 55, s. 1. 7 De Armond v. State, 40 Ind. 469. 

4 Lanesborough case, C. S. & J. 125. 



534 

members, returned upon double returns, do withdraw until their 
returns are determined." 1 In Pennsylvania a commission issued 
to a county officer, pending a contest of his election, is irregular, 
but not void. Its operative effect is suspended, during the pen- 
dency of the contest, but, when the contest is decided in his favor, 
the commission takes effect, and no second commission is neces- 
sary. 2 

§ 632. When the state constitution declares that no collector, or 
holder, of public money shall be eligible to any office of trust, or 
profit, until he shall have accounted for, and paid over, all sums 
for which he may have been liable, if the fact that an officer elect 
is a defaulter shall be properly brought to the notice of the gov- 
ernor, he may legally refuse to issue a commission ; 3 and, if the 
officer shall have been commissioned, he may be removed, upon 
quo warranto. 4 

§ 633. The statute of the territory of Nebraska required that 
the poll-book, with the precinct abstract indorsed thereon, which 
constituted the precinct return, should be sent, under seal, to the 
county clerk ; that the judge of probate, with the aid of three 
householders, selected by himself, should open the poll-books 
and make an abstract of the votes cast in the county for each 
officer ; that these abstracts should be certified and sent, by the 
county clerk, to the secretary of the territory, who, with the aid 
of two other officers, should thereupon canvass the votes. But, 
instead of the abstracts required by law, the precinct poll-books 
themselves were sent from certain counties, to the secretary of 
state, to be used in the canvass, and were rejected. It was held, 
by a majority of the committee, that the rejection of these poll- 
books was illegal ; that the statute, which required the poll-books 
to be retained in the office of the county clerk, and the abstracts 
to be transmitted and used, as the basis of the territorial canvass, 
was merely directory ; and that the poll-books were better evi- 
dence, for the canvassers, than the abstracts would have been. 
The minority concluded that the poll-books were lawfully rejected ; 
that the certified abstracts of the probate judge, by whom the 
officers of election were appointed, were essential to the authenti- 

1 May Pari. Pr. 441; 1 Bushby, 96. 3 Swepston v. Barton, 39 Ark. 549; 

2 Couuty of Luzerne v. Trimmer, 95 Taylor v. Governor, 1 id. 21. 

Penn. St. 97. 4 Swepston v. Barton, 39 id. 549 ; Car- 

son v. McPhetridge, 15 Ind. 327. 



535 

citj of the return. 1 Under a statute requiring the county can- 
vassers to sign, and the county clerk to attest, an abstract of the 
Totes of the county, and to deposit the same in the office of the 
clerk, and' requiring the clerk to forward a certified copy of such 
abstract, under his seal, to the seat of government, for the use of 
the state canvassers, the question arose, in the forty-fourth con- 
gress, whether the clerk's certified and sealed copy of an abstract, 
signed by the canvassers, but not attested by the clerk, could be 
received and used, by the state canvassers. Six members of the 
committee were of the opinion that the clerk's certification of the 
copy cured the defect in the abstract. Five were of the opposite 
opinion. The case involved other questions. The house adopted 
the views of the minority. 2 The committee of elections will not 
reject, for mere informality, a county abstract, which truly presents 
the aggregates of the votes actually cast in the voting precincts. 3 
Where the law of the territory makes it the duty of the terri- 
torial canvassers to count the votes, and ascertain the result 
of the election ; and requires the governor, who is one of the 
canvassers, when the result is thus ascertained, to issue a cer- 
tificate of election to the person having the highest number of 
votes, the summing up, or abstract, necessarily made to show the 
result, is, from its nature, a public record of the executive depart- 
ment, even though not signed by the canvassers, and not expressly 
prescribed by law ; and a certified transcript of such summing up, 
or abstract, is competent evidence of the result of the election. 
The returns of the clerks of the several counties, wheresoever 
filed, are not the evidence on which the governor bases his cer- 
tificate. 4 Where the statute authorizes a county clerk, or other 
officer, to file, in his office, an abstract of the votes cast for the 
several candidates, and to transmit certified copies thereof to 
the state canvassers, as the basis of their action, in determining 
the result of the election, such abstracts constitute prima facie 
evidence of the vote of the county, before the committee of elec- 
tions. 5 

§ 634. The failure of the canvassers to give a certificate of elec- 

1 Bennett v. Chapman, 1 Bart. 204. 3 Clark v. Hall, 1 Bart. 215. 
The house overruled the committee, 4 Daily v. Estabrook, id. 299. 
by a vote of 69 to 63. 5 Gause v. Hodges, Smith, 291. 

2 Piatt v. Goode, Smith, 650. 



536 

tiou does not impair the right to the office. 1 It only renders it 
necessary for the house to go back to the returns and poll-books, 
and ascertain, if possible, from these, or from any competent and 
sufficient evidence, who was actually elected, and award the seat 
accordingly. 2 

§ 635. A mistake, in the count of votes received bv a candidate 
for an office, made by the board of canvassers, whether innocently 
or otherwise, is good ground for contesting an election ; and evi- 
dence of the same is admissible, either under a special plea of 
such mistake, or under an averment that the contestant had re- 
ceived a higher number of votes than his opponent. 3 When it 
has become notorious, as a part of the political history of the 
country, that the returning board, upon whose canvass the certif- 
icate of a claimant of a seat in the house is based, never had 
possession of the election returns, and therefore never canvassed 
them, the house will take judicial notice of the facts, and exclude 
the applicant. 4 In England it is a misdemeanor for a returning 
officer to act as agent for a candidate. 5 

§ 636. In the United States, the disposition to be made of the 
returns, poll-books, tally-sheets, registration-lists, ballots, and 
ballot-boxes, after the conclusion of the canvass, is indicated by 
state laws. In the United Kingdom the ballot papers and other 
documents relating to the election are to be disposed of as follows. 
First of all the counted and rejected ballots are to be sealed up 
in separate packets. The returning officer is then to verify, in the 
presence of the agents, the ballot-paper accounts, which each pre- 
siding officer is required to furnish him. As soon as he has 
completed his verification of the ballot-paper accounts, he is to 
reseal the packets. He is to send a written report of such verifi- 
cation to the clerk of the crown. 6 And finally, in England, or 
Ireland, he is to deliver, or forward by mail, to the clerk of the 
crown all the packets of ballot papers in his possession, together 

1 Attorney-General v. Elderkin, 5 Wis. isiana, was void, on account of flagrant 
300. frauds and the arbitrary exercise of judi- 

2 Boyden v. Shober, 2 Bart. 904. cial power, on the part of the board. 
3 Hadley v. Gutridge, 58 Ind. 302. Acklen v. Darrall, 1 Ells. 124. 

4 Sheridan v. Pinchback, Smith, 196. G 30 & 31 Vict. c. 102, s. 50; 31 & 32 

It was held by the house of representa- Vict. c. 49, s. 13; 35 & 36 Vict. c. 33, ss. 

tives, in 1878, that the report of the 11, 17. 

Wells-Anderson returning board, in Lou- 6 35 & 36 Vict. c. 33, rule 37. 



537 

with the other documents relating to the election. 1 The clerk of 
the crown is required to preserve ballot papers for one year, and 
then, unless* otherwise ordered by the house of commons, or by one 
of her majesty's superior courts, to cause them to be destroyed. 2 
All documents relating to elections, sent to the clerk of the crown, 
except the counted ballots, the rejected ballots, and the counter- 
foils, will be opened to public inspection, at such time, and under 
such regulations, as may be prescribed by the clerk of the crown, 
with the consent of the speaker ; and the clerk of the crown will 
supply copies of, or extracts from, such documents, upon payment 
of the fees sanctioned by the treasury. 3 Neither the counted 
ballots, nor the counterfoils, are to be inspected, except on an 
order of the house of commons, or of some tribunal having cog- 
nizance of election petitions. The order may be made subject to 
such conditions, as to the persons, time, place and mode of opening 
as the house, or the tribunal making the order, may deem expedient. 
But no such order is to be executed, as to the vote of any particular 
elector, until it is proved that such elector actually voted, and his 
vote is declared invalid by a competent court. 4 Rejected ballots 
may be inspected, by order of the house of commons, or of one 
of the superior courts, or of a judge at chambers, upon sworn 
proof that the inspection, or production, of such rejected papers, 
is required for the purpose of instituting, or maintaining, a prose- 
cution, or for the purpose of an election petition. 5 In Scotch elec- 
tions, the ballot papers, and the other documents relating to the 
election, are not to be sent to the clerk of the crown ; but are to be 
retained by the sheriff-clerks of the respective counties. But all 
the provisions respecting the 'production and inspection of ballot 
papers and election documents apply to Scotland, the sheriff-clerk 
being substituted for the clerk of the crown. 6 

1 35 & 36 Vict. c. 33, rule 62 ; 2 & 3 W. 4 35 & 36 Vict. c. 33, rule 41. 

4, c. 65,s.34. 5 Id. rule 40. 

2 35 & 36 Vict. c. 33, rule 3.9. 6 Id. rule 59. 

3 Id. rule 42 ; 7 & 8 W. 3, c. 7, s. 5. 



CHAPTER XXVII. 

PRIVILEGES AND KEMEDIES OF ELECTORS AND OFFICERS OF 

ELECTION. 

Secs. Secs. 

1. Privileges of electors and offi- I 2. Remedies of electors against offi- 

cers ...... 637 I cers and others . . 638-643 

§ 637. It is provided, in the constitution of Alabama, that 
" electors shall, in all cases except treason, felony, or breach of 
the peace, be privileged from arrest, during their attendance at 
elections, or while going to or returning therefrom j" 1 and, in the 
constitution of Connecticut, that, " at all elections of officers of the 
state, or members of the general assembly, the electors shall be 
privileged from arrest, during their attendance upon, and going 
to and from, the same, on any civil process." 2 Most of the state 
constitutions contain provisions similar to that of the constitution 
of Alabama. An elector, who, after depositing his vote, remains 
at a public house, in the neighborhood, while the officers of elec- 
tion are counting the votes, is " attending on the business of the 
election," and therefore privileged from arrest, on civil process. 3 
Under a state constitution requiring elections to be free and equal, 
and protecting electors from arrest for misdemeanors, officers of 
election cannot be arrested, on election day, at the polls, or in 
going to or returning from the same, except for treason, felony, or 
breach of the peace. The refusal of a vote is not an offence for 
which an election officer can be arrested at the polls, on election 
day. Nor can he be arrested, on election day, for impounding a 
forged naturalization paper. 4 

§ 638. Every voter has a legal remedy against officers, who 
illegally and wilfully deprive him of his vote, and the joinder of 
others, similarly circumstanced, or injured, as complainants in 
equity, for the purpose of avoiding a multiplicity of suits, will not 
constitute a valid ground for equitable relief. 5 In an action against 
a judge of election, for the refusal of the plaintiff's vote, the petition 

1 Const. Ala. 1875, art. 8, s. 4. Application, 1 Brewst. 182. 

2 Const. Conn. 1818, art. 6, s. 8. 5 Hardesty v. Taft, 23 Md. 512. 

3 Swift v. Chamberlain, 3 Conn. 537. 

538 



539 

must show that the judge's refusal of the vote resulted in its exclu- 
sion from the ballot-box. 1 Where the selectmen, upon the appli- 
cation of a person known to them to be a legal voter, refuse to place 
his name on the list, and notify him of such refusal, and, for that 
reason, he fails to offer his vote, the selectmen will not be liable in 
an action on the case for such refusal, if they reconsider their 
determination, and place the voter's name on the list, before the 
opening of the meeting, so that his vote, if offered, would be 
received at the first balloting. 3 In an action against the judges 
of election, for refusing to permit the plaintiff to vote, the defend- 
ants cannot require the plaintiff, after showing that they acted as 
judges, to make any further proof of the validity of the election. 3 
When the presiding officer omits, or neglects, to inspect the official 
mark, on the back of the ballot paper, before it is put into the 
box, and it is afterwards rejected, for want of the official mark, 
he is liable to be sued for his neglect, by a candidate who, upon 
a scrutiny, is found to have lost his election, in consequence of the 
fact that votes, given for him, were void for want of the official 
mark. 4 Officers of election, who wilfully and corruptly reject a 
lawful vote, are liable, in exemplary damages, to the injured voter. 5 
§ 639. The question whether judges of election, who are public 
officers, charged with the difficult duty of deciding promptly 
upon the qualifications of voters, are liable, in damages, for 
errors of judgment only, when they have been guilty of no 
malice, and have exercised an honest and fair judgment on the 
questions decided, has given rise to some difference of judicial 
opinion in the United States ; but the weight of authority is against 
their liability in such cases. 6 The leading case is Ashby v. White. 
The declaration, in that case, alleged that the defendants, in 
rejecting the votes, acted fraudulently and maliciously ; and the 
house of lords, sustaining the action, gave, as a reason for their 

1 Caulfield v. Bullock, 18 B. Mon. 494. ter v. Harrison, 5 Blackf . 137 ; Wheeler 

2 Bacon v. Benchly, 2 Cush. (Mass.) v. Patterson, 1 N. H. 88; Caulfield v. 
100. Bullock, 18 B. Mon. 494; Bridge v. 

3 Bernier v. Russell. 89 111. 60. Oakey, 2 La. An. 968 ; Tozer v. Child, 

4 Pickering v. James, 8 L. R. C. P. 489. 26 L. J. Q. B. 151 ; Drewe v. Colton, 1 

5 Elbin v. Wilson, 33 Md. 135. East, 563, note. See Cullen v. Morris, 2 
G Ashby v. White, 1 Brown Pari. Cases, Stark. 577 ; Pike v. Magoun, 44 Mo. 

49 ; Harman v. Tappenden, 1 East, 555 ; 492 ; State v. Daniels, 44 N. H. 383. 
Jenkins v. Waldron, 11 Johns. 114 ; Car- 



540 

opinion, the wilful misconduct of the defendants. The same doc- 
trine is recognized in Drewe v. Coulton reported in a note to Har- 
man v. Tappenden. Justice Wilson there says that the action is, 
in its nature, an action for misbehavior by a public officer, in the 
performance of his duty ; that his act cannot be called a misbe- 
havior, unless maliciously and wilfully performed ; and that the 
action does not lie for a mistake in law. The same principle is 
also recognized in Harman/y. Tappenden. The question was long 
ago discussed by the courts of New York and New Hampshire ; 
and their decisions are in harmony with the English authorities. 
There is a contrary decision in Massachusetts. 1 But the court, 
in that case, admit that their decision is in opposition to the En- 
glish doctrine ; and the grounds of that decision are held by the 
court, in the New Hampshire case, to be insufficient to sustain it. 
§ 640. Under statutes requiring judges of elections to " deter- 
mine upon the legality of all the votes offered," and prescribing 
penalties for knowingly and unlawfully receiving illegal votes, or 
rejecting legal votes, 2 the judges are, pro hac vice, judicial officers. 
If their judgment be pure and honest, although erroneous, they 
will be liable neither to the commonwealth, nor to the party whose 
ballot may be refused. 3 • Under a statute exempting selectmen 
from liability for refusing to receive a vote, unless their action is 
" unreasonable, corrupt, or wilfully oppressive," their action can- 
not be deemed unreasonable, when the question, decided by them, 
is so doubtful that reasonable and intelligent men, unaffected by 
bias, or prejudice, might differ in their conclusions. 4 Where the 
poll-book, delivered by the county auditor to the judges of elec- 
tion, contained a form of oath to be administered to persons 
challenged, which differed materially from the form prescribed in 
a code published seven years before the election, and the judges, 
on the supposition that the law had been changed since the publi- 
cation of the code, adhered to the form of oath furnished by the 
auditor, and rejected the ballot of a person who had been chal- 
lenged, and had refused to take such oath, it was held, in an action 
brought by him against the judges of election, that, if the latter 
honestly believed that the form of oath furnished by the auditor 

1 Lincoln ®. Hapgood, 11 Mass. 350. 3 Miller v. Eucker, 1 Bush. 135. 

2 Kev. Stat. Ky. 1860, art. 3, ss. 5, 7, 8, 4 Sanders v. Getchell, 76 Me. 158. 
9,10. 



54:1 

was correct, and acted in that belief, they could plead and prove 
their mistake of law, in mitigation of damages. 1 The duties of 
canvassers, in Indiana, are ministerial, and if they unlawfully fail 
to perform them, or perform them in an unlawful manner, so that 
injury .results, they will be liable to the person injured, whether they 
act maliciously, purposely, or by mistake, and it is not necessary 
to aver, in the complaint, that they acted maliciously or purposely. 2 
But in Iowa, although canvassers can be compelled, by mandamus, 
to perform the duties imposed upon them, by law, they are not 
liable to actions to recover damages for the non-performance of 
such duties. 3 

§ 641. The supreme court of Massachusetts holds that an action 
will lie against selectmen, for refusing to receive the vote of a 
qualified elector, although not chargeable with malice, upon the 
following grounds : that inasmuch as these officers, if they have 
acted in good faith, cannot be punished criminally, the voter, 
who is deprived of his franchise, can have no relief whatever, 
except by civil action against them ; that their decision is neces- 
sarily final and conclusive, so far as the particular election is 
concerned ; that the rejected vote can be counted by no other tri- 
bunal, and an injury results, not only to the individual, but also 
to the public, it being for the public interest that each election 
officer shall be chosen by the majority of all the qualified citizens 
who may choose to exercise the privilege of voting ; that if a 
qualified elector, who is unjustly prevented from voting, can 
maintain no action for the injury, without proof of malice, he 
is shut out from a judicial investigation of his right, and succeed- 
ing injuries may be founded on one originally committed by 
mistake, so that he may be perpetually excluded from the common 
privilege of citizens, without any lawful means of asserting his 
rights and restoring himself to active citizenship ; that, in England, 
the necessity for such a rule is obviated by the fact that a vote, 
illegally rejected, will be counted and have its influence on the 
election ; and that, however hard such an action may be against 
the officers, it is essential to the rights of the citizen that it should 
be sustained. 4 But, in order to maintain such an action, the 

1 Long v. Long, 57 Iowa, 497. Henshaw v. Foster, 9 Pick. 312 ; Blanch- 

2 Moore v. Kessler, 59 Ind. 152. ard v. Stearns, 5 Mete. (Mass.) 298; 
3 Jayne v. Drorbaugh, 63 Iowa, 711. Killiam v. Ward, 2 Mass. 236. 

4 Lincoln v. Hapgood, 11 Mass. 350; 



54:2 

plaintiff must show that he furnished the defendants with suffi- 
cient proof of his legal qualifications, and requested them to insert 
his name in the list of voters, before they refused to receive his 
vote, or to place his name on the list. And the plaintiff, in his 
declaration, must aver specifically all the facts which constituted 
his qualifications, and must allege that, before he offered his vote, 
he furnished the defendants with sufficient proof of such qualifica- 
tions. 1 But even in Massachusetts, a voter cannot maintain an 
action against the assessors for their omission to tax him, whereby 
he loses his right to vote, without affirmative proof that the assess- 
ment was omitted wilfully, and with the purpose of depriving him 
of his vote. 2 The Massachusetts rule, as to the liability of officers 
of election, has been followed in some other states. 3 

§ 642. Under the federal law, 4 every judge, inspector, or other 
officer of election, whose duty it is to receive, count, certify, reg- 
ister, report, or give effect to, the vote of an elector, who wrongfully 
refuses, or omits, to receive, count, certify, register, report, or give 
effect to, the vote of such elector, forfeits the sum of five hundred 
dollars, to the person aggrieved by such refusal, or omission, to 
be recovered in an action on the case, with costs and counsel fees. 
So far as state elections are concerned, this provision is only ap- 
plicable to cases in which the refusal, or omission, is made on 
account of race, color, or previous condition of servitude. But in 
elections of representatives in congress, which elections congress 
has full power to regulate, the provision is applicable to all cases, 
whatever may be the ground of the refusal or omission. In order 
to sustain an action, under the statute, for refusing to administer 
an oath to the plaintiff, to enable him to prove his qualifications 
for the elective franchise, in cases of state elections, it must be 
alleged, in the complaint, and proved, on the trial, that the alleged 
refusal was on account of the race, color, or previous condition of 
servitude, of the plaintiff. 5 In an action, brought under this 
statute, the plaintiff cannot join, in one count, or statement of a 
cause of action, averments that the defendant unlawfully and 
wrongfully prevented the plaintiff from voting for representative 

^lanchard v. Stearns, 5 Mete. (Mass.) vard v. Hoffman, 18 Ind. 479 ; Moran v. 

298. Rennaud, 3 Brewst. 601. 

2 Griffin v. Rising, 11 Pick. 339. 4 Rev. Stat. U. S. s. 2008. 

3 Anderson *>. Milliken, 9 Ohio St. 568 ; 5 McKay v. Campbell, 2 Abb. U. S. 120. 
Jeffries v. Ankeney, 11 Ohio, 373 ; Be- 



543 

in congress, for governor, for sheriff, and for other county officers, 
refused to swear him as to his qualifications, and refused to enter 
his name on the poll-books. These different acts are distinct causes 
of action, under the statute, and are to be alleged in separate 
counts, or statements. Objection to such pleading for duplicity 
is taken, at common law, by special demurrer. Under statutes 
substituting the motion to strike out, for the special demurrer, the 
objection is to be taken by such motion. 1 Plaintiffs, seeking to 
recover damages for being unlawfully deprived of their right to be 
registered as voters, must allege, in their declarations, as matter 
of fact, that they were legally qualified voters, or, that allegation 
being omitted, must allege all the facts necessary to show, as 
matter of law, that they were qualified voters, and, to this end, 
must negative all disqualifications prescribed by statute. 2 

§ 643. In an action, against the selectmen of a town, for refusing 
to place the plaintiff's name on the list of voters, and rejecting 
his vote, the plaintiff may prove his own unsworn statements 
relating to his residence, made to the selectmen before he offered 
his vote, for the purpose of furnishing to them evidence of his 
possession of the legal qualifications of a voter, in the absence of 
proof that the selectmen objected to such statements, at the time, 
on the ground that they were not made under oath. 3 In an action 
against judges of election, for refusing the plaintiff's vote, the 
plaintiff's declarations, made when he left the state, are admissible 
in evidence, for the purpose of showing with what purpose 
and for what object he left the state. 4 In an action, against the 
selectmen of a town, for refusing to place the plaintiff's name on 
the list of voters, and rejecting his vote, the question of his 
intention, in leaving the town for a prolonged absence, is material ; 
and his own testimony, that he did not intend thereby to change 
his domicile, is admissible. 5 A defendant, sued for participation 
in a militia drill, on election day, cannot plead, in justification^ 
the order of his superior officer. 6 

1 McKay v. Campbell, 2 Abb. U. S. 120. 4 Miller v. Rucker, 1 Bush. 135. 

2 Murphy v. Ramsey, 114 U. S. 15. 5 Lombard v. Oliver, 7 Allen (Mass.), 
3 Lombard v. Oliver, 7 Allen (Mass.), 155 ; Fiskv. Chester, 8 Gray (Mass.), 506. 

155. fi Hyde v. Malone, 11 Johns. 520. 



CHAPTEE XXVIII. 



ELECTION OF PEESIDENT AND SENATORS OF THE UNITED STATES. 



Secs. 

1. Election of president by elec- 

toral colleges. 

(1) Under original constitution . 644 

(2) Under amendment proposed 

in 1803 . . . .645 

2. Election of senators. 

( 1) Constitution of legislature ; 

dual organization . 646-652 



Secs. 

(2) Time and place of election . 653 

(3) Vote in separate houses, and 

in joint convention . 654-656 

(4) Quorum ; majority ; plural- 

ity ; minority candidate, 657-659 

(5) Act of 1866 . . . 660-665 

(6) Appointment by g o v - 

ernor . . . . 666-668 



§ 644. The electors of president and vice-president are, in prac- 
tice, chosen on a general ticket, each voter in the state being 
permitted to vote for the whole number of such electors to which 
the state is entitled. In some cases it is required that each ballot 
shall contain the name of at least one resident of each congres- 
sional district in the state ; in others there is no such restriction 
as to the residence of the candidates. 1 The federal constitution, 
in its original form, required each presidential elector to vote by 
ballot, in the electoral college, for two persons, being inhabitants 
of different states. The person shown by the canvass, made in 
presence of the senate and house of representatives, to have 
received the highest number of votes, was to be president, provided 
he had received the votes of a majority of all the electors ; and 
the person having the next highest number was to be the vice- 
president. But if two persons had received the same number of 
votes and each had received the votes of a majority of all the 
electors, the house of representatives was required to choose one 
of them for president, by ballot, whereupon the other was to be 
the vice-president. If no person had received the votes of a 
majority of all the electors, the house of representatives was 
required immediately, to choose a president, by ballot, from the 
five highest on the list. In this elecbion the votes were required 
to be taken by states, the representatives from each state having 

x Pub. Stat. Mass. 1882, p. 90; Stat. vol. 2, p. 1007; Battle's Kev. (N. C.) 
Iowa, 1880, vol. 1, p. 169; Stat. Tenn. 372. 
1871, ss. 913, 914, 915; Rev. Stat. Mo. 

544 



545 

one vote, a quorum for this purpose consisting of members, from 
two-thirds of the states, and a majority of all the states being 
necessary to a choice. In case two, or more, persons had received 
the same number of votes, and the next highest number after the 
person chosen president, the senate was required to choose one of 
them vice-president, by ballot. In this election the senators were 
directed to vote individually, and not by states. 1 • 

§ 645. The constitution, in its present form, requires the elect- 
ors to vote for president and vice-president on distinct ballots, 
and provides that the person shown by the canvass, made, in 
presence of the senate and house of representatives, to have received 
the highest numbers of votes for the office of president, shall be 
president, if he shall have received the votes of a majority of all 
the electors. But if no person have such majority, then, from the 
persons, not exceeding three, having the highest numbers of votes 
for president, the house of representatives is required to choose 
the president, immediately, by ballot. And in this election the 
votes are required to be taken by states, the representatives from 
each state having one vote, a quorum for this purpose consisting 
of members from two-thirds of the states, and a majority of 
all the states being necessary to a choice. If the house of repre- 
sentatives shall not choose a president, whenever the right of 
choice shall devolve upon it, before the fourth day of March next 
following, then the vice-president will be empowered to act as presi- 
dent, as in the case of the death, or other constitutional disability, 
of the president. It is also provided, in the amended constitution, 
that the person having the greatest number of votes for vice-presi- 
dent shall be the vice-president, if he shall have received the votes 
of a majority of all the electors appointed ; and that, if no person 
shall have received such majority, then, from the two persons 
having the greatest number of votes, the senate shall choose the 
vice-president, a quorum for the purpose to consist of two-thirds 
of the whole number of senators, and a majority of the whole 
number to be necessary to a choice. In this election the senators 
are to vote individually, and not by states. 2 

1 Const. U. S. art. 2, s. 1. constitution, by the senate and house of 

2 Amend. Const. U. S. art. 12. representatives, and the president of the 
There has been a wide difference of senate, respectively, in the canvass of the 

opinion as to the nature and extent of votes of the electoral colleges, 
the powers, to be exercised, under the 

35 



546 

§ 64:6. The question as to what constitutes a state legislature, 
in the sense of the constitution of the United States, has been 
already considered. x It has been held, by the senate of the United 
States, that to constitute a legislature, capable of enacting laws, 
or of performing any other duty confided to that body, by the 
constitution of the United States, it is essential that there should 
be in existence, at the same time, a governor, or some officer 
authorized to perform the executive functions, and a senate and 
house of representatives, and that, in the absence of either, the 
others could not perform any act which would be obligatory on 
the people of the state. 2 It has also been held, by the senate, 
that it would be a dangerous exertion of power to look behind 
the commissions of senators, for defects in the component parts 
of the state legislature, or into the peculiar organization of the 
body, as grounds to justify the senate of the United States in 
declaring its acts absolutely null and void ; that such a power, 
if carried to its legitimate extent, would subject the entire scope 
of state legislation to be overruled by the senate ; and even the 
right of suffrage of individual members of the legislature, whose 
elections were contested, might be set aside ; that it would lead 
to investigations into the motives of members in casting their 
votes, for the purpose of establishing charges of corruption in 
particular cases ; that these matters properly belong to the tri- 
bunals of the state, and cannot constitute the basis, on which the 
senate could, without an infringement of state sovereignty, claim 
the right to declare void the election of a senator, who possessed 
the requisite qualifications and was chosen according to the forms 
of the law and the constitution. 3 

§ 647. The constitution of the state of Rhode Island, in 1833, 
consisted of the charter granted by Charles II, in 1663, modified 
by subsequent acts of the state legislature. The statutory pro- 
vision, dividing the legislature into two bodies, was valid, although, 
under the charter, it consisted of only one. The statutory pro- 
vision, which permitted the electors to vote in their own towns, 
instead of Newport, where the charter required them to vote, was 
also valid. The act authorizing the governor and senators to hold 
over, until their successors were elected and qualified, was valid. 

' Ante § 292. 3 Potter v. Bobbins, C. & H. 877. 

2 Potter v. Bobbins, C. & H. 877. 



547 

The senators who took part in the election of senator Robbins, in 
1833, were duly qualified, their successors not having been chosen, 
and the legislature, of which they constituted a part, was the law- 
ful legislature of the state. 1 

§ 648. On the 27th of June, 1864, the committee on the judiciary 
reported, to the senate of the United States, on the claims of 
William M. Fishback and Elisha Baxter to seats, as senators from 
Arkansas, substantially as follows : The president on the 16th of 
August, 1861, declared the inhabitants of Arkansas, except those 
of such parts of the state as should maintain a loyal adherence to 
the union, or might be from time to time occupied and controlled 
by United States forces, to be in a state of insurrection. At the 
date of the proclamation, no part of the state was occupied, or 
controlled, by forces of the United States ; nor did the inhabitants 
of any part of the state publicly maintain a loyal adherence to the 
union. At that time a state of civil war existed, between the 
inhabitants of Arkansas and the United States, and there was no 
organized authority, in the state, competent to elect senators of 
the United States. The men, who took part in the reorganization 
of the state government, were, in number, less than one-fourth of 
those who voted at the presidential election in 1860. The state 
was occupied by hostile armies. The state government, existing 
only by sufferance of military authorities, was not a republican 
government, in the sense of the constitution. When the rebellion 
should have been so far suppressed, in the state, that the loyal 
inhabitants should maintain a state government, with the aid of, 
but not in subordination to, the military authorities of the United 
States, and not before, they would be entitled to representation in 
congress. The senate adopted a resolution refusing to admit the 
claimants, by a vote of 27 yeas to 6 nays. 2 

§ 649. The credentials of E. King Cutler and Charles Smith, 
as senators from Louisiana, were presented December 7, 1864. At 
the same time a memorial of citizens of Louisiana was presented, 
remonstrating against their admission to seats in the senate. The 
credentials and memorial were referred to the committee on the 
judiciary. The committee reported that the claimants had been 
duly elected, and that, but for the fact that, in pursuance of an 
act of congress passed July 13, 1861, the inhabitants of Louisiana 

1 Potter v. Bobbins, C. & H. 877. 2 Fishback's case, Taft, 240. 



548 

had been declared in a state of insurrection, which still continued, 
at the time of the election of the claimant's, they would have 
recommended their immediate admission to the senate ; but that, 
in view of that statute, they deemed it improper for the senate to 
admit them, in advance of legislation, by congress, recognizing an 
existing state government. They recommended the adoption of a 
joint resolution, recognizing the government of the state ; but no 
action was had thereon. 1 Joseph Segar and John C. Underwood 
claimed to have been elected United States senators, from Virginia, 
December 8, 1864. In opposition to their title to the seats, 
it was said that the body, by which they were elected, was not the 
legislature of Virginia, a large part of that state being in rebellion. 
They were not admitted. 2 

§ 650. After the passage of the reconstruction acts of congress, 
but before the enactment of the law declaring Florida entitled to 
representation in congress, the legislature of the state, on the 
second Tuesday after its organization, June 16, 1868, proceeded, 
under the act of July 25, 1866, to the election of two senators, to 
fill vacancies in the terms ending March 3, 1869, and March 3, 
1873. The two houses, having voted separately on that day with- 
out success, met in joint convention on the next day, and again, 
pursuant to adjournment, on the third day, when they elected a 
senator for the term which was to expire March 4, 1873, and 
adjourned sine die. On the fourth day, June 19, 1868, the mem- 
bers of the two houses, in pursuance of a resolution adopted by 
each house, assembled in joint convention, and elected a senator 
for the term to commence March 3, 1869. His election was con- 
tested, on the grounds that the state of Florida was not, at the 
time, recognized as entitled to representation in congress, and that 
he was not elected in conformity with the act of July 25, 1866. 
But the senate overruled both objections. 3 

§ 651. A very embarrassing question has been, and may here- 
after be, presented in the senate of the United States, growing out 
of a dual organization of one or both of the branches of the state 
legislature. In such a case, it may happen that one of the rival 
bodies will contain a quorum of the legally returned members, and 
the other a quorum of the legally elected members, and that the 

] Cutler's case, Taft, 248. 3 Hart v. Gilbert, Taft, 320. 

2 Segar's case, id. 252. 



549 

two will elect different persons to the office of United States senator. 
The question presented by a contested election, in the United States 
senate, in such a case, involves great difficulties. In the case of 
a single organization of the legislative body, an election of senator 
decided by the votes of legally returned members, who are subse- 
quently unseated, because not legally elected, if in other respects 
valid, is not invalidated by the illegality of their election, even 
though the members, so legally returned, but not legally elected, 
are necessary to a quorum of the body. Is the mere fact of a 
double organization of the body sufficient to change the rule, so 
that members legally returned, but not legally elected, can neither 
vote for senator nor contribute to the quorum ? It is evident that, 
in the absence of constitutional, or valid, statutory provisions, con- 
trolling, or affecting, such a case either expressly and directly, or 
by implication or indirectly, such as provisions fixing the place, 
or time, of meeting, and designating the officers charged with the 
organization of the body, the members legally returned, though not 
legally elected, are to be counted to elect a senator, or to constitute 
a quorum, as well when the body, so constituted, is only a mere 
quorum of the whole number of members fixed by law, as when 
it embraces all or nearly all the members so elected. In case of 
a dual organization, if there be no controversy growing out of the 
time, or place, of the organization, or the official character of the 
persons presiding, it will be impossible to base a different rule 
upon any very satisfactory ground. 

§ 652. If the two bodies subsequently coalesce, and substitute 
the legally elected members for those legally returned, but not 
legally elected, that only will be accomplished which is accom- 
plished whenever, in a single body, after the election of a United 
States senator, legally elected members of the legislature are sub- 
stituted for those who had been legally returned, but not legally 
elected ; and there would seem to be no substantial reason for a 
change of the rule. An adjudication of the contested elections of 
members of the legislature, after the senatorial election, would 
not, in one case, more than in the other, relate back to the sena- 
torial election, so as to affect the legality of the quorum, or of 
the election. It is clear that the only alternative is either to 
accept, as valid, the organization effected by members legally 
returned, and the election by that organization, or to reject the 



550 

whole work of the fragmentary organizations, and treat the reor- 
ganization as the real original organization, invested with the 
power and duty to hold an election, whatever may have been the 
action of the fragmentary bodies. Whether one of these courses, 
or the other, is to be taken, may depend on the relative numbers 
of the rival organizations, and the circumstances of the case. If in 
the case 1 from Alabama, decided in 1873, the task imposed upon 
the committee was to assign the best possible grounds for a fore- 
gone conclusion, this task was most ably executed ; but the 
decision, if rather political, than judicial, in character, may not 
be accepted, as a binding precedent, in a future case, where the 
political interests of a majority shall require a different ruling. 

§ 653. Before the enactment of the law of July 25, 1^86, regu- 
lating the election of senators, the state legislatures exercised the 
power of determining when to choose senators for the regular 
terms prescribed by the constitution. When a vacancy happened, 
by resignation, or otherwise, during the recess of the legislature 
of any state, it was competent for the legislature, at its next 
session, to fill such vacancy. Upon a resignation of his office, by 
a United States senator, to take effect in futuro, the legislature 
could elect a successor to hold the office from the time his resig- 
nation took effect ; and, in case of his death, before his resignation 
took effect, and an appointment, by the governor, to till the vacancy, 
occasioned by his death, the senator chosen by the legislature 
would be entitled to the seat, from the day on which the resigna- 
tion took effect, until the end of the term. 2 

1 Sykes v. Spencer, Taft, 556. still senator, died. Mr. Dixon was 

2 Dixon's case, id. 13. therefore chosen by the legislature, not 
On the seventeenth of December, 1851, only before the day fixed in Mr. Clay's 

Henry Clay was a senator from Ken- resignation for his retirement, but also 

tucky, having been chosen for a term of before his death. Upon the death of 

six years, which would have expired Mr. Clay, the governor of Kentucky made 

March 4, 1855. He communicated to a "temporary appointment" of David 

the legislature of Kentucky his resigna- Meriwether as senator from Kentucky, 

tion, to take effect on the first Monday to hold the seat until the first Monday 

in September, 1852. The legislature, in September, 1852. Mr. Meriwether 

being then in session, chose Archibald immediately took the vacant seat and 

Dixon to fill the vacancy, so to occur, held it, until Congress adjourned, on 

from the first Monday in September, the last day of August, 1852. On the 

1852, to the 4th of March, 1855. On 6th of December, 1852, when the senate 

the 29th day of June, 1852, during the reassembled, Mr. Meriwether did not ap- 

recess of the legislature, Mr. Clay, beiug pear, but Mr. Dixon appeared, presented 



551 

§ 654. Grave doubts have been entertained as to the power of 
state legislatures, under the constitution of the United States, to 
act, in the choice of- senators, otherwise than as separate bodies 
subject to the provisions of the state constitutions. But the senate 
of the United States has held that it is a constitutional exercise of 
power for the state to provide for electing United States senators 
by a concurrent vote of the two branches of the legislature, each 
having a negative upon the action of the other, or by a joint con- 
vention, in which a majority of a quorum, or a majority of all the 
members of the legislature, shall be necessary to elect. 1 The elec- 
tion of a senator is not invalidated by the fact that, at one of the 
joint sessions of the legislature, held, for the election of senator, 
prior to that at which the senator was chosen, a quorum of state 
senators was not present. 2 When it was provided, in the statute. 



his credentials and claimed the seat. 
The questions presented were,(l)vvhether 
a senator could, in his resignation, ap- 
point a future day for his retirement 
from the senate, (2) whether the legis- 
lature could fill a prospective vacancy so 
occasioned, and (3) whether an election, 
to fill such vacancy, would be defeated 
by the subsequent death of the resign- 
ing senator, before the arrival of the 
day fixed for his retirement from the 
senate. It was insisted that the first 
question was settled by an unbroken 
succession of precedents, extending from 
the foundation of the government ; that 
Mr. Bledsoe had fixed a future day for 
his retirement from the senate, in his 
resignation, in 1814 ; that Mr. Clay had 
done so in 1842, Mr. Berrien in 1852, 
and Mr. Foote in 1852 ; that the second 
question was answered, with equal dis- 
tinctness, by the precedents ; that the 
vacancies occasioned by the resignations 
of senators Bledsoe, Clay, Berrien and 
Foote, had been prospectively filled by 
the proper authorities of their respective 
states. By a vote of twenty-seven to 
sixteen the senate declared Mr. Dixon 
entitled to the seat. Dixon's case, 1 
Bart. 611 ; Cong. Globe, 32 Cong. 2 sess. 
pp. 2, 93, 96 ; same case, Taft, 13. On 



the 19th of January, 1833, Asher Rob- 
bins was elected United States senator, 
by the legislature of Rhode Island, for 
the term commencing March 4, 1833. 
His credentials were presented to the 
senate in due form in February, 1833. 
In October, 1833, the legislature de- 
clared his election void, on the ground 
that the legislature which elected him 
did not comply with the law, but pro- 
ceeded prematurely, and thereupon 
elected Elisha R. Potter, whose creden- 
tials were presented on the 2d of Decem- 
ber, 1833. After debate a motion to 
refer the case to a special committee was 
lost by a vote of 15 to 19, and Mr. Rob- 
bins was admitted to the seat pending 
the contest. Potter v. Robbins, C. & H. 
877. 

James Shields was elected senator 
from Minnesota, after the passage of 
the enabling act for that state, and be; 
fore the final admission of the state to 
the union he demanded the seat. But 
the senate refused to admit him until 
after the bill admitting the state was ap- 
proved. Shields' case, Taft, 187. 

1 Yulee v. Mallory, 1 Bart. 608 ; same 
case, Taft, 184. 

2 Lapham's case, Taft, 642. 



552 

regulating the election of senators, that each branch of the legis- 
lature should appoint a teller, and nominate a candidate for the 
office of senator, and give notice of the appointment and nomina- 
tion, at least one day previous to the meeting of the joint con- 
vention, it was held that the provision was merely directory and 
that a failure to comply with the formality would, under no cir- 
cumstances, suffice to vitiate an election otherwise legal and valid. 1 

§ 655. In 1857 there was neither federal nor state law to regu- 
late the election of senators in Indiana. The state constitution 
made it the duty of the speaker of the house of representatives to 
open and publish the votes for governor and lieutenant-governor 
in the presence of both houses of the general assembly. No pro- 
vision existed in the constitution making such meeting or presence 
of the two houses a convention, or providing any officer therefor, 
or empowering them to transact any business, except the election 
of a governor or lieutenant-governor in case of a " tie vote " by 
the people. Both houses being in session, the speaker of the house 
of representatives notified each that he should proceed to open and 
publish the votes for governor and lieutenant-governor on Monday, 
January 12, 1857, at half-past two o'clock p. m. in the hall of the 
house. Shortly before the hour arrived the president of the senate 
announced that he would proceed immediately to the hall of the 
house of representatives ; and thereupon he repaired to the hall 
of the house, with such senators as chose to go, being a minority 
of the whole number, and there, in their presence and in the pres- 
ence of the members of the house, the votes for governor and 
lieutenant-governor were duly counted and published by the 
speaker, and the successful candidates declared elected. 

At the close of this business a senator, without any vote for that 

1 Cameron's case, 1 Bart. 627; same vestigation by the senate. Lapham's case, 

case, Taft, 184. It is competent for a Taft, 642. A memorial of members of 

member of a state legislature to vote a state legislature, charging that bribery 

for himself, in the election of a United and corruption were practiced in the 

States senator (Bateman's case, Taft, election of a senator, and asserting that, 

96). Bribery, in procuring an election upon an investigation made by the legis- 
to the senate, is not a mere ground for j lature, if it had been full and fair, evi- 

expulsion, but avoids the election itself. dence would have been produced estab- 

Caldwell's case, Taft, 368. But a mere lishing the charge, but not setting forth 

allegation of rumors of bribery practiced such evidence, will not justify an in- 

in the election of senators, unaccom- vestigation by the senate of the United 

panied by proof, will not justify an in- States. Bogy's case, Taft, 554. 



553 

purpose, declared the meeting (by him then called a convention) 
adjourned until two o'clock p. m. Februarj^ 2, 1857. The senate, 
being advised of this proceeding, on the 29th of January, 1857, as 
appears by its journal, passed a resolution protesting against the 
proceedings of the so-called convention, and against any election 
of United States senators or other officers by such convention. 
On the 2d of February, 1857, the president of the senate, with a 
minority of its members, again attended in the hall of the house, 
and without proceeding to any business, and without any vote, 
declared the convention adjourned until February 4, 1857, at which 
time the president of the senate, with twenty-four of its members, 
went to the hall of the house of representatives, and there, with 
sixty-two members of the house, proceeded to vote for United 
States senators. Messrs. Bright and Fitch received, each, eighty- 
three votes, twenty-three of which were given by members of the 
senate, and they were declared elected. 

The senate of Indiana then consisted of fifty members and the 
house of one hundred, and a constitutional quorum in either house 
consisted of two-thirds of its members. No quorum of either 
house was present, therefore, at the election. Protests against 
this election were presented to the senate of the United States by 
twenty-seven state senators and thirty -five representatives, who 
insisted that in the absence of any law, joint resolution, or other 
regulation for holding a joint convention, it was not competent for 
a minority of the members of the senate to meet with a majority, 
less than a quorum, of the representatives and elect United States 
senators. 

The senate, in conformity with the recommendation of the com- 
mittee, awarded the seats to Messrs. Bright and Fitch. 1 

§ 656. It was provided, by a statute of the state of Iowa, that, 
at an hour to be designated by a resolution of either branch of 
the general assembly, with the concurrence of the other, the 
members of both houses should meet, in convention, in the hall 
of the house of representatives, for the purpose of electing a 
senator, in pursuance of the constitution of the United States. 
After several sessions the joint convention, on the fifth day of Jan- 
uary, 1855, adjourned until ten o'clock, before noon, of January 
6, 1855. But at nine o'clock, in the forenoon of January 6, 1855, 

' Bright's case, 1 Taft, 629. 



554 

the senate adjourned until the next Monday, which was the eighth 
day of January, 1855. Some of the senators, however, appeared 
in the hall of the house of representatives, without their president, 
on the sixth of January, and the speaker of the house announced 
that the joint convention was in session. Whereupon, a majority 
of the convention, but not of the senators, being present, they 
proceeded to elect James Harlan a senator of the United States. 
On the morning of January 8, the senate, by a resolution entered 
upon its journal, declared that it did not participate in the pro- 
ceedings, and protested against the action of the so-called joint 
convention, as void, and directed authenticated copies of the reso- 
lution to be sent to the governor of Iowa and to the presiding 
officer of the senate of the United States. The senate, by a vote 
of twenty-eight to eighteen, declared that Mr. Harlan was not en- 
titled to the seat. 1 

§ 657. On the 13th of January, 1851, the general assembly of 
Florida met in convention, to elect a senator, for the term begin- 
ning March 4, 1851. Upon a viva twee vote, taken in compliance 
with the requirements of the constitution of the state, twenty-nine 
members responded " David L. Yulee," and twenty-nine responded 
" blank," whereupon the presiding officer declared that there had 
been no election. On the 15th of January the legislature again 
met in joint convention, when thirty-one members voted for 
Stephen R. Mallory, and twenty-seven for Mr. Yulee, whereupon 
the presiding officer declared Mr. Mallory duly elected. Neither 
party appeared, to take the seat, at the special session held in 
March, 1851. On the 8th day of March, 1851, a letter from Mr. 
Yulee was read, announcing that he should contest the seat. On 
the 1st of December, 1851, the credentials of Mr. Mallory were 
presented, and he took the oath of office. On the same day the 
letter of Mr. Yulee, with accompanying documents, was referred 
to a select committee of five. On the 21st of August, 1852, the 
committee reported that there was in force in Florida, at the time 
of the election, the following resolution : " Resolved, That a 
majority of all the members elect, composing the two houses of the 
general assembly, shall be necessary to determine all elections 
devolving on that body;" that this resolution, although not pur- 
porting on its face to be a joint resolution, was in fact such, hav- 

1 Harlan's case, 1 Bart. 621. 



555 

ing been adopted by both houses of the legislature, and although 
not signed by the officers of both houses, nor approved by the 
governor, was a valid and proper provision ; that the whole num- 
ber of members elect was fifty-nine ; that Mr. Yulee, receiving 
but twenty-nine votes, on the first ballot, did not obtain a sufficient 
number to elect him ; and that Mr. Mallory was duly elected. On 
the 27th of August, 1852, the senate unanimously resolved, " That 
the Honorable Stephen R. Mallory was duly elected a member of 
the senate of the United States, from the 3d day of March, 1851." 
Mr. Yulee's claim to the seat was based on the ground that the 
resolution, making the votes of a majority of all the members elect 
necessary to an election, was not valid legislation; that the law of 
Florida had always been that a majority of a quorum of the mem- 
bers of the legislature could elect ; that the votes of the twenty- 
nine, who responded " blank," were not to be counted, and that he, 
being the only qualified person voted for, and receiving twenty- 
nine votes, had a majority of the legal votes, and more than a 
majorhVv of a quorum. 1 

§ 658. John P. Stockton took his seat in the senate, December 
4, 1865. At the same time a memorial of members of the legisla- 
ture, protesting against his admission to the seat, was presented. 
His credentials and this memorial were referred to the commit- 
tee on the judiciary, who reported that the facts connected with 
Mr. Stockton's election were as follows : There was no law in 
New Jersey prescribing the manner of electing senators, beyond 
a provision that they should " be appointed by the senate and 
general assembly, in joint meeting assembled." The joint meet- 
ing, which elected Mr. Stockton, passed a resolution declaring 
that the candidate who should receive a plurality of votes should 
be elected. The joint assembly consisted of eighty-one members. 
All were present when he was chosen. He received forty votes 
and all the others forty-one. The question before the senate was 
whether a joint convention could prescribe a plurality vote. The 
committee reported that, for the purpose of choosing senators, 
the joint convention was regarded as the legislature, vested by the 
constitution with authority to prescribe the manner of electing 
senators, and that Mr. Stockton was entitled to the seat. In 
opposition to the report it was maintained that, in ' the absence 

1 Yulee v. Mallory, Taft, 143. 



556 

of statutory provision to the contrary, a majority was necessary 
to an election of senator, and that such statutory provision could 
only be enacted by the legislature acting through the two branches 
separately. The report of the committee was adopted, by a vote 
of 22 to 21, Mr. Stockton himself voting in the affirmative ; but 
subsequently the senate reconsidered the vote, and, having resolved 
not to receive Mr. Stockton's vote on the question, finally decided, 
by a vote of 23 yeas to 20 nays, that Mr. Stockton was not entitled 
to the seat. 1 

§ 659. The ineligibility of the candidate, receiving the majority 
of the votes cast for United States senator, although known to the 
electors, will not result in the choice of the eligible candidate 
having the next highest number of votes. The English rule is at 
variance with the American theory of government. But, when 
the constitutional provision, imposing the disability, authorizes its 
removal by statute, the election is voidable only, and not void. 2 

§ 660. The third section of the first article of the constitution 
of the United States contains the provision that the senate of the 
United States shall be composed of two senators from each state, 
chosen by the legislature thereof, for six years ; and each senator 
shall have one vote. In the fourth section of the same article it is 
provided that the times, places, and manner of holding elections for 
senators and representatives shall be prescribed, in each state, by 
the legislature thereof ; but the congress may at any time, by law, 
make or alter such regulations, except as to the place of choosing 
senators. Congress, exercising the power conferred by the con- 
stitution enacted the law of July 25, 1866, 3 regulating the time and 
manner of holding elections of senators, leaving the regulation of 
the places, where the constitution places it, in the hands of the 
state legislatures. Before the enactment of that statute, senators 
had been chosen by the state legislatures in joint convention, or by 
separate concurrent votes, in some cases with, and in others with- 
out, the aid of regulations prescribed by state law. 

1 Stockton's case, Taft, 264. tor was elected to represent such state in 

2 Kansom v. Abbott, id. 338. congress, shall on the second Tuesday 

3-Rpv Stat TT S m 14 15 The act after the meeting and organization there- 
Kev. btat. U. b. ss. 14, lb. ine act of> proceed to elect a senator in con . 

of July 25, 1866, is in these words : gress. 

Sec. 14. The legislature of each state, Sec. 15. Such election shall be con- 

which is chosen next preceding the ex- ducted in the following manner,: Each 

piration of the time for which any sena- house shall openly, by a viva voce vote 



557 

§ 661. The following are the material provisions of this statute : 
(1) The joint assembly is not a meeting of the two branches of the 
legislature, as organized bodies, but is a meeting of members of 
those bodies. (2) A quorum of the joint assembly consists of a 
majority of the whole number of both houses, not of a majority of 
each house. The state constitution may fix the quorum in the respec- 
tive branches of the state legislature, or in joint conventions of the 
two, at two-thirds, at a bare majority, or at an arbitrary number less 
than a majority, but such local regulations have no applicability 
to this joint assembly, in which a majority of the aggregate mem- 
bership of the two houses constitutes a quorum, in which more 
is not required and less will not suffice. (3) The statute itself 
constitutes the only notification required of this assembly. It 
is the right and duty of each member of either house to attend the 
joint assembly, without regard to any vote, resolution, or other 
action of his house, authorizing or directing such attendance. (4) 
When the two houses, separately, make the same choice on the first 
day, no voting for senator is lawful in the joint assembly, which 
can, in such case, only ascertain and declare the result of the 
separate action of the houses. (5) But it is the duty of the joint 
assembly to choose the senator whenever the two houses fail to 
make the same choice, whether such failure results from a selection 
of different persons, or from the neglect or refusal of one or both 
houses to vote for senator, or from any other cause. (6) The 
presiding officer of the joint assembly is not designated by the 
statute. Any member of either house is competent to preside. 

of each member present, name one per- if the same person has not received a 

son for senator in congress from such majority of the votes in each house, or if 

state, and the name of the person so either house has failed to take proceed- 

voted for who receives a majority of the iugs, as required by this section, the 

whole number of votes cast in each joint assembly shall then proceed to 

house, shall be entered on the journal of choose, by a viva voce vote of each mem- 

that house by the clerk or secretary ber present, a person for senator ; and 

thereof ; or if either house fails to give the person who receives a majority of all 

such majority to any person on that day, the votes of the joint assembly, a major - 

the fact shall be entered on the journal. ity of all the members elected to both 

At twelve o'clock meridian of the day houses being present and voting, shall 

following that on which the proceedings be declared duly elected. If no person 

are required to take place, as aforesaid, receives such majority on the first day, 

the members of the two houses shall con- the joint assembly shall meet at twelve 

vene in joint assembly, and the jourDal O'clock meridian of each succeeding day 

of each house shall then be read, and if during the session of the legislature, and 

the same person has received a majority shall take at least one vote until a sena- 

of all the votes in each house, he shall tor is elected, 
be declared duly elected senator. But 



558 

Indeed, while the selection of a presiding officer is almost a matter 
of course, it is not made essential to the validity of the proceedings. 

(7) The place for the joint assembly is not fixed by the statute. 

(8) As it is not necessary that a majority of each branch of the legis- 
lature shall be present, so it is not essential to a choice that a 
candidate shall receive, in the joint assembly, a majority of the votes 
of each branch. (9) It is the duty of the members of the senate 
and house to meet each day, without notice, and without the direc- 
tion or authority of either house, until a senator is chosen. 

It would seem to be clear, upon the face of the act, that the 
presence of a majority of each house is not essential to the legality 
of the joint assembly, and that the circumstance that less than a 
majority of one house are present will not invalidate the constitu- 
tion or action of the assembly. This construction, the rejection 
of which would be fatal to the validity of many elections of senators 
held since the enactment of the law, was placed upon the law by 
its makers, and has been adopted by all its authoritative ex- 
pounders. 1 



1 In the executive session of March 8, 
1877, Mr. Morton, chairman of the com- 
mittee on privileges and elections, stated 
his views on this point in these words : 

" I now take up the record of the elec- 
tion of senator of the United States. The 
two houses convened in joint convention, 
in pursuance of the act of congress, on 
the tenth of January. The presiding 
officer announced that nominations were 
now in order for an election of a United 
States senator for the term of six years, 
beginning March 4. 1877. Representa- 
tive D'Avy nominated Hon. William Pitt 
Kellogg. No other nominations being 
made, the respective rolls of the two 
houses were called. Seventeen senators 
answered to their names, being less than 
a quorum of that body. Sixty six repre- 
sentatives answered to their names, being 
five more than a quorum of that body. 
The vote was then taken, and William 
Pitt Kellogg received a majority of all 
the votes. There were present of the 
members of the legislature, duly re- 
turned by the returning-board, as I am 
advised, sixty-six representatives and 
seventeen senators. There were thus 
five over a majority of the whole num- 
ber of senators and representatives. 
Eighty-one would be a majority of the 



whole, senators and representatives, and 
there was a majority of the whole num- 
ber voting ; for although there were two 
less than a quorum of the senate present, 
there were so many more than a quorum 
of the house present as to make a major- 
ity of the whole number of the members 
of the legislature. That is a compliance 
with the act of congress, to which I shall 
refer. The act of congress providing for 
the election of senators, passed in 1866, 
provides as follows : * * * 

' ' The election comes entirely and 
clearly within the specification of the 
act of congress. We all know how that 
act was called into existence ; that it 
had been a very common thing, before 
its passage, when the two houses of the 
legislature were divided in politics, one 
party having a majority in one and the 
other in the other house, that a quorum 
would be broken in one house or the 
other, and thus defeat an election, or 
one house would refuse to go into the 
election at all ; and thus senatorial elec- 
tions were often defeated and postponed. 
To remedy, that evil this act was passed, 
and it was provided that if the two houses 
failed to elect on the first day, from any 
cause ; if they should refuse to go into 
an election, or if, for any reason, there 
was no election on the first day, the 



559 

§ 662. The act requires the journals of both houses to be read, 
in such cases, on the day following the vote in the separate houses ; 



members of the two houses should 
meet in joint convention on the next 
day, and if, when they so met, there was 
a majority of all the members of the two 
houses present, though there might be 
less than a quorum of one house, yet, if 
there was a majority of all present, it 
was sufficient for the election." Cong. 
Kec. March 8, 1877. 

In the debate which occurred on the 
passnge of the bill by the senate, this 
interpretation of the provision was 
recognized, and its constitutionality 
maintained by senators Sumner, An- 
thony, Howe, Clark, Ueverdy Johnson, 
and Trumbull. The following proceed- 
ings occurred : 

"Mr. Williams. I should like to ask 
a question with reference to the language 
used in the twenty-ninth line of the first 
section. It reads : ' And the person 
having a majority of all the votes of the 
said joint assembly, a majority of all 
the members elected to both houses 
being present and voting. ' Is it intended 
by that phraseology to require a ma- 
jority of each house or a majority of 
both houses ? 

" Mr. Claek (in charge of bill). A ma- 
jority of both present. There is to be a 
majority of the two counting together 
as one body. 

''Mr. Trumbull (chairman of the ju- 
diciary committee). I will say further 
that the committee were unanimous 
in regard to this bill. It is a bill the 
want of which has been felt ever since 
I have been a member of congress, when- 
ever a contested election has arisen ; 
and such cases have most frequently 
arisen out of the difficulty of the two 
houses of a legislature meeting together. 
It has always been considered desirable 
that congress should pass some law on 
the subject, and I think that the ju- 
diciary committee, of which I have been 
a member for the last eight or ten years, 
in discussing this matter, have always 
agreed that it was desirable that congress 
should pass some law on the subject, and 
avoid those contests that arise from the 
fact that a factious opposition in one 
branch of the legislature of the other 
sometimes prevents the two houses from 
meeting together. 



" Mr. Eevekdt Johnson. I think the 
bill as it stands, with the amendment 
suggested by the senator from Maine, 
ought to pass. The first section of the 
bill provides that each house is to vote 
by itself. The senate are. of course, 
aware that in the beginning — and the 
same opinion continued to be entertained 
a good while after the constitution was 
. adopted — it was very much doubted by 
some of the best men in the country 
whether any election could be made by 
the legislature in any other way than by 
the votes of both branches, acting con- 
currently, where the legislature of the 
state consisted of two bodies. The 
language of the constitution is that 'the 
senate of the United States shall be 
composed of two senators from each 
state, chosen by the legislature thereof.' 
I do not speak with certainly, but either 
Chancellor Kent or Mr. Justice Story, 
in his commentaries, has said that it was 
exceedingly doubtful whether the true 
meaning of that provision is not that 
the choice is to be made by the legisla- 
ture legislatively, and, of course, that 
they are to act in the way in which they 
are alone authorized to act by their state 
constitutions, under which they exist. 
in the passing of laws. Whether the 
doubt was originally well founded, I am 
not prepared to say ; I rather think it 
was ; but the states have acted upon a 
different construction of the constitution 
since." 

Chancellor Kent states his opinion in 
these words : 

" There were some difficulties, some 
years ago, as to the true construction of 
the constitution in the choice of sena- 
tors. They were to be chosen by the 
legislature, and the legislature was to 
prescribe the times, places, and manner 
of holding elections for senators, and 
congress was authorized to make and 
alter such regulations, except as to 
place. As the legislature may prescribe 
the manner, it has been considered and 
settled, in New York, that the legislature 
may prescribe that they shall be chosen 
by joint vote or ballot of the two houses, 
in case the two houses cannot separately 
concur in a choice, and then the weight 
of the senate is dissipated and lost in 
the more numerous vote of the assem- 
bly. This construction has become too 



560 

and that requirement ought to be complied with. But, in the 
absence of proof that it was not complied with, the maxim, 
" Omnia rite acta presumuntur " applies. No law provides for 
any record of such fact. No statute, state or federal, requires 
either house of the legislature, or the convention itself, to make 
any record of it. The absence of such record, therefore, does not 
legally disprove, or tend to disprove, the fact that the journals 
were read. 

§ 663. The case of Mr. Harlan, of Iowa, was decided by the 
senate in the thirty-fourth congress. He had been elected under 
a state law which provided that a convention of members of both 
houses of the general assembly for the election of a senator should 
be held at a time to be fixed by concurrent resolution of the two 
houses ; that the president of the senate, or in his absence the 
speaker of the house, or, in the absence of both, a president pro 
tempore should preside ; that two tellers, previously appointed by 
the two houses, should act as judges of the election ; that the chief 
clerk of the house of representatives should act as secretary ; that 
the secretary of the senate and chief clerk of the house should 
each record the proceedings ; that the proceedings should be 
entered upon the journal of each house ; that the names of the 
persons voting and voted for should be recorded by the tellers ; 
that the vote should be reported by the tellers to the president ; 
that the president should declare the person receiving a majority 
of the votes to be duly elected ; that he should, in the presence of 
the members of both houses, sign duplicate certificates of election, 
attested by the tellers ; that one of these should be transmitted 
to the governor and the other preserved among the records of the 
convention and entered upon the journal of each house ; and that 
the governor should issue credentials to the senator elect. By a 
concurrent resolution the two houses fixed upon a time for the 
election of a senator of the United States and a judge of the 
supreme court. A joint convention was held at the time fixed, but 
no choice was made ; and, upon adjournment, other meetings were 

convenient, and been too long^ettledby the legislature per capita,\)Vit the legis- 

the recognition of senators so elected to lature in the true techuical sense, being 

be now disturbed ; though, I should the two houses, acting in their separate 

think, if the question was a new one, and organized capacities, with the ordi- 

that when the constitution directed that nary constitutional right of negative on 

the senators should be chosen by the each other's proceedings." 1 Kent, 

legislature, it meant not the members of Comm. 226. 



561 

held from day to day without a choice. But on the fifth day the 
senate adjourned for the day before, the hour fixed for the joint 
convention, and failed to attend as an organized body. A majority 
of the house and fifteen senators, took part in the proceedings. 
Together they constituted a majority of both branches of the 
assembly. A president pro tempore was chosen, and a judge of 
the supreme court, and United States senator, were elected. Mr. 
Harlan received the votes of a majority of tue whole number of mem- 
bers of the general assembly. The state senate, at its next meeting, 
by resolution, declared this election to be void and of no effect. 
The senate of the United States, after Mr. Harlan had held his 
seat for nearly two years, decided that he was not entitled to it. 
The ground on which the majority of senators placed their decision 
was that the state law, as a whole, required the two houses to meet 
in the joint convention as organized bodies, and the failure of the 
senate to meet in its organized capacity invalidated the election. 1 
§ 664. The Iowa law of 1854 did not, like the federal law of 
1866, authorize a joint convention, but, as the senate decided, 
required the houses to meet as organized bodies. If, in view of 
the differences between the Iowa statute and the act of congress, 
it could be claimed that Senator Harlan's case was any authority 
for the position so fatal to the title of many senators chosen since 
1866, that the presence of a majority of each body in the joint 
assembly was essential to its legality, under the act of congress 
of 1866, the effect of that authority would be neutralized by the 
decision of the senate, in the same congress, in the cases of sena- 
tors Bright and Fitch of Indiana. 2 

1 Harlan's case, 1 Bart. 621 ; same case, law required that the president should 
Taft, 155 ; Cong. Globe, Jan 9, 1857. announce the result on the report of the 

Senators Seward, Fessenden, Trumbull, tel \ er ^ £* not on ^ ° the . r f autho »ty ; 

' ' ' and he had no such authority on which 

Collamer, Hale, Pugh, and Toombs were to announce it. Next, the law required 

among those who took the opposite that the tellers should attest the certifi- 

ground, in debate, and voted for Mr. cate of the president, and they did not 

„ i do it. Next, the law required that these 

proceedings should be entered on the 

Senator Douglas concurred in the view journal of the senate as well as of the 

adopted by the senate, and he added the house of representatives, and they were 

following : no * thus entered. Thus you find that in 

six or seven material essential points 

' ' Let me recapitulate. The law re- there is a total disregard of the law under 

quired that there should be tellers which that election is claimed to have 

elected by each house, and no tellers taken place." 
were thus elected. Secondly, the law 

required that the names should be taken Bright's case, 1 Bart. 629; same case, 

down by the tellers and reported to the Taft, 217 ; ante § 655. 
president, and that was not done. The 

36 



562 

§ 665. In the sense of the act of July 25, 1866, the legislature, 
" chosen next preceding the expiration of the time, for which any 
senator was elected to represent said state in congress," is the 
legislature the members of which are chosen at the election next 
preceding the expiration of the senatorial term, whether such leg- 
islature be organized before, or after, the expiration of the term. 1 
It is competent for a state legislature to choose a senator, to fill 
a vacancy, after the second Tuesday following the communication 
of notice of the vacancy, by the governor, to the legislature. 2 
Under the act of 1866, the vote of a majority of the entire legisla- 
ture is not essential to the validity of the election of a United 
States senator. 3 

§ 666. If vacancies happen, by resignation or otherwise, during 
the recess of the legislature of any state, the executive thereof 
may make temporary appointments until the next meeting of the 
legislature, which shall then fill such vacancies. 4 On the twenty- 
sixth of March, 1794, the senate of the United States, by a vote 
of twenty to seven, adopted the following resolution : " Resolved, 
That Kensey Johns, appointed, by the governor of the state of 
Delaware, as a senator of the United States, for the said state, is 
not entitled to a seat in the senate of the United States, a session 
of the legislature of said state having intervened, between the 
resignation of the said George Reed and the appointment of the 
said Kensey Johns." 5 When, after an appointment of a senator, 
to fill a vacancy, by the governor of a state, the legislature met 
and adjourned to the day fixed, by the state constitution, as the 
limit of its existence, without an election, it was held, by the unan- 
imous vote of the senate, that the right of the governor's appointee 
to the seat expired with the adjournment of the state legislature. 6 
Samuel S. Phelps was appointed, by the governor of Vermont, in 

1 Norwood v. Blodgett, Taft, 331. the seat. It does not appear whether 

2 Lapham's case, id. 642. the senate decided that a vacancy had 

3 lb. not happened, in the sense of the consti- 

4 Const. U. S. art. 1, s. 3 ; Tracy's case, tution, or that the appointment could 
Taft, 26, and cases cited; Blair's case, not be made, before the actual occurrence 
Taft, 36 ; Sevier's case, id. 7. But see of the vacancy. 

the case of Lanman, Taft, 5. He was 5 Johns' case, C. & H. 874; same case, 

appointed by the governor, February 8, Taft, 1. 

1825, to fill a vacancy, to occur by the 6 Williams' case, 1 Bart! 612 ; same 

expiration of a term, on the 4th of March, case, Taft, 23. See also Globe, 33 

following, and was held not entitled to Cong. 1 sess. pp. 2208, 2209, 2211. 



563 

the recess of the legislature of that state, to fill a vacancy in the 
senate of the United States ; and subsequently the legislature met 
and adjourned, without an election. The question was whether 
Mr. Phelps was entitled to retain his seat in the senate, after the 
adjournment of the legislature. The majority of the committee 
held that the effect of the clause of the third section of article 1 
of the constitution, providing that the executive of the state might 
" make temporary appointments, until the next meeting of the 
legislature," was to restrict the exercise of the governor's power 
to the period indicated, but not so to limit the term of the ap- 
pointee, which would continue until an election by the legislature, 
on the expiration of the senatorial term itself. They also held 
that the meeting of the legislature could not be construed to mean 
its dissolution or adjournment. And they concluded that Mr. 
Phelps was entitled to retain his seat until the legislature should, 
at another meeting, fill the vacancy, or until the term should 
expire. The minority of the committee concluded that the con- 
stitution limited, not only the time for exercising the appointing 
power of the executive, but also the tenure of office of the ap- 
pointee, and that, while a strict literal construction might terminate 
the office of the governor's appointee at the meeting of the legis- 
lature, the precedents had extended the period to its adjournment ; 
and that Mr. Phelps' right to the seat expired with the adjourn- 
ment of the legislature. The senate, by a vote of twenty-six to 
twelve, sustained the views of the minority and excluded the 
claimant. 1 

§ 667. The statute of Connecticut, in 1825, contained the fol- 
lowing provision : " Whenever any vacancy shall happen, in the 
representation of this state in the senate of the United States, by 
the expiration of the term of service of a senator, or by resigna- 
tion or otherwise, the general assembly, if then in session, shall, 
by a concurrent vote of the senate and house of representatives, 
proceed to fill said vacancy,' by a new election ; and, in case such 
vacancy shall happen in the recess of the general assembly, the 
governor shall appoint some person to fill the same until the next 
meeting of the general assembly.'.' The term of Mr. Lanman, a 
senator from Connecticut, expired March 4, 1825. An extraordi- 
nary session, having been called by the president of the United 

1 Phelps' case, 1 Bart. 614 ; same case, Taft, 16, 



564 

States, was held on the same day, at which Mr. Lanman presented 
a certificate, regularly authenticated, from Oliver Wolcott, governor 
of the state of Connecticut, setting forth that the president of 
the United States had desired the senate to convene on the fourth 
day of March, 1825, and had caused official notice of such extra- 
ordinary session to be communicated to the governor of Connecti- 
cut ; and that, at the time of the execution of the certificate, the 
legislature of the state was not in session, and would not be until 
the month of May following. The certificate was dated February 
8, 1825, before the expiration of senator Lanman's term, but after 
the call of the extraordinary session of the senate by the presi- 
dent. By a vote of eighteen yeas, to twenty-three nays, a 
resolution, declaring Mr. Lanman entitled to the seat, was defeated 
March 7, 1825. 1 But on the 4th of March, 1801, Uriah Tracy, 
who had been appointed senator, by the governor of Connecticut, 
under the same statute and in like circumstances, was admitted to 
the seat, by a vote of thirteen to ten. 3 

§ 668. Upon the allotment of the first senators from the state 
of Arkansas to their respective classes, under the third section of 
the first article of the constitution, A. H. Sevier was placed in the 
class of senators whose term of office expired March 4, 1837. The 
legislature of Arkansas having had no opportunity to fill the va- 
cancy, not having been in session after the allotment, the governor 
of the state, on the 17th day of January, 1837, appointed Mr. 
Sevier to fill the vacancy to occur on the 4th of March, 1837. The 
question raised was whether the appointment, by the governor, 
was valid. The judiciary committee of the senate reported that 
they had found, among the precedents, no case like that under 
consideration ; that several cases had occurred, in which the exec- 
utives of different states had appointed senators, in anticipation 
of the expiration of the regular term of service, the legislature 
not being in session, and that, in all such cases, the senators so 
appointed had been admitted to their seats, until the extraordinary 
session of the senate in March, 1825, when Mr. Lanman was ex- 
cluded ; that the principle asserted in Lanman's case was that the 
legislature of a state should provide for all vacancies, which must 
occur at stated and known periods ; and that the expiration of a 

'Lanman's case, C. & H. 871 ; Taft, 5. Cong. 1 sess. pp. 2208, 2209, 2211. 
2 Tracy's case, 1 Bart. 612 ; Globe, 33 



565 

regular term of service was not such a contingency as was em- 
braced in the second section of the first article of the constitution ; 
and that they. did not question the correctness of the decision in 
Lanman's case ; but that Sevier's case was essentially different ; 
that the time of the expiration of his first term had been fixed, 
by lot, after the adjournment of the legislature, so that it had not 
been in the power of the legislature to hold a new election. Mr. 
Sevier was admitted to the seat. 1 

1 Sevier's case, 1 Bart. 605, Taft, 7. 



CHAPTEE XXIX. 



ELECTION OF OFFICEKS BY LEGISLATIVE BODIES. 



Secs. 

1 . Speaker and other officers of the 

house of representatives of the 
United States .... 669 

2. President and other officers of the 

senate .... 670,671 

3. Speaker and other officers of the 

house of commons of the United 
Kingdom . . . 672,673 



Secs. 



Prolocutor or speaker of the house 
of lords . . . / . .674 

Officers of state senate and house 
of representatives . . . 675 

Election of executive or judicial 
officers .... 676-681 



§ 669. Legislative bodies may be permitted, by the constitutions 
conferring their powers, to elect, not only their own officers, 
but also officers of the executive, and judicial, departments of 
the government. The power to choose its own officers is 
expressly conferred, upon the house of representatives of the 
United States, by the following clause of the constitution : " The 
house of representatives shall choose their speaker and otter 
officers." 1 It is also provided, in the constitution, that " each 
house may determine the rules of its proceedings." 2 Subject to 
the express and implied limitations of the constitution, and to its 
own rules, the house may determine what officers to choose, in 
addition to the speaker, may prescribe their qualifications, func- 
tions, and powers, and may choose and remove them at pleasure. 
Of course it cannot extend the tenure of its officers beyond the 
limit of its own existence. Membership is not made by the con- 
stitution a qualification for either of the offices of the house of 
representatives. In practice the office of speaker has always been 
conferred upon members, and the other offices upon persons not 
members of the house. In the exercise of its power to choose its 
own officers the house is wholly exempt from control by congress, 
which can neither determine the offices to be filled, nor prescribe 
the qualifications, powers, functions, or tenure of the officers, or 
the mode of their election, or removal. The speaker is usually 
chosen by a viva voce vote. The other officers are chosen by a 
viva voce vote, by ballot, or by resolution. 

3 Id. s. 5. 

566 



: Const. U. S. art. 1, s. 2. 



567 

§ 670. The vice-president of the United States is the permanent 
president of the senate ; x but the senate is empowered to choose 
all its other officers, including a president pro tempore in the 
absence of the vice-president, or when he shall exercise the office 
of president of the United States. The following is the constitu- 
tional provision : " The vice-president of the United States shall 
be the president of the senate, but shall have no vote, unless they 
be equally divided. The senate shall choose their other 'officers, 
and also a president "pro tempore, in the absence of the vice- 
president, or when he shall exercise the office of president of the 
United States." Subject to the express and implied limitations of 
the constitution and to its own rules, the senate determines what 
officers to choose, in addition to the president and president pro 
tempore, prescribes their qualifications, functions, and powers, 
and chooses and removes them at pleasure. While the constitution 
does not make membership a qualification for any of the officers 
of the senate, in practice the president pro tempore has always 
been a senator, and the other offices have been held by persons 
who were not senators. In the choice of its officers the senate, 
like the house of representatives, is wholly exempt from congres- 
sional control. The president pro tempore is usually chosen by 
viva voce vote, the other officers by viva voce vote, by ballot, or 
by resolution, at the pleasure of the senate. 

§ 671. The president pro tempore of the senate, if a senator, 
may first vote as senator, and then, if the senate be equally 
divided, give the casting vote. The constitutionality of this 
practice has been questioned upon the ground that it is the intent 
and meaning of the constitution that the person, who holds the 
office of president pro tempore of the senate, whether he was, or 
was not, a senator when chosen to that office, should exercise, for 
the time being, only the powers which are conferred upon the 
permanent president of the senate, who, unlike the speaker of the 
house, is expressly prohibited from voting, except when the senate 
is equally divided, and that the power to make an equal division, 
by one vote, and then to determine the result, by a casting vote, 
cannot be vindicated upon grounds either of justice or of sound 
policy. On the other hand it is insisted that a senator, although 
acting as president pro tempore, of the senate, is still a senator ; 

1 Const. U. S. art. 1 s. 3. 



568 

• 
that he holds two distinct offices, which are not incompatible with 

each other ; that as a senator he exercises the same rights as other 
senators ; that as president pro tempore of the senate he exercises 
the powers conferred upon that officer, by the constitution, and 
that there is no injustice in this, because, if his vote makes the 
division equal, it would have the same effect if he were not presi- 
dent pro tempore, and, the division being equal, it is no more 
unjust for one presiding officer to give the casting vote than for 
another. 

§ 672. The house of commons of the United Kingdom, in the 
election of its speaker, observes the following form of procedure. 
A member of the house, addressing himself to the clerk (who, 
standing up, points to him, and then sits down), moves that some 
other member, then present, " do take the chair of this house, 
as speaker," which motion is seconded by another member. If 
no other nomination be made, the member proposed will be called, 
by the house, to the chair, without any formal vote. 1 He then 
stands up, in his place, and expresses his sense of the honor pro- 
posed to be conferred upon him, and submits himself to the house. 
The house again unanimously calls him to preside, and his pro- 
poser and seconder conduct him to the chair. When another 
member is proposed for speaker, a similar motion is made and 
seconded in regard to him, and both the candidates address them- 
selves to the house. A debate ensues in relation to the claims 
of the respective candidates, in which the clerk continues to act 
the part of speaker, standing up and pointing to the members, as 
they rise to speak, and then sitting down. When this debate is 
closed, the clerk puts the motion that the member first proposed 
" do take the chair of this house, as speaker," and, upon a division, 
he directs one party to go into the right lobby, and the other to go 
into the left, and appoints two tellers for each. If the majority be 
in favor of the member first proposed, he is at once conducted to 
the chair ; if not, a similar question is put in relation to the other, 
which being resolved in the affirmative, that member is conducted 
to the chair by his proposer and seconder. 2 The speaker elect, 
on being conducted to the chair, stands on the upper step, and 

1 May Pari. Pr. 191; 108 Com. J. 7; and note; 112 Com. J. 119; 114 id. 
Hans. Deb. Nov. 4, 1852; Hatsell, 218, 191; 121 id. 9. 

a 90 Com. J. 5. 



569 

expresses " his grateful thanks," 1 or " humble acknowledgments," 2 
" for the high honor the house has been pleased to confer upon 
him," and thenjakes his seat. The mace, which up to this time 
has been under the table, is now laid upon the table, where it is 
always placed during the sitting of the house, with the speaker in 
the chair. The speaker elect is then congratulated, by some 
leading member, and the house adjourns. 

§ 673. The house meets on the following day, and the speaker 
elect takes the chair, and awaits the arrival of the black rod, from 
the lords commissioners. When that officer has delivered his 
message, the speaker elect, with the house, goes up to the house 
of peers, and informs the lords commissioners " that, in obedience 
to her majesty's commands, her majesty's faithful commons, in the 
exercise of their undoubted right and privilege, have proceeded to 
the election of a speaker, and, as the object of their choice, he now 
presents himself at your bar, and submits himself with all humility 
to her majesty's gracious approbation." In reply the lord chan- 
cellor assures him of her majesty's sense of his sufficiency, and 
" that her majesty most fully approves and confirms him, as the 
speaker." 3 The speaker, thus elected and approved, continues in 
office, during the whole parliament, unless he resigns, or dies. In 
the event of a vacancy, during the session, similar forms are 
observed, in the election and approval of a speaker, except that, 
instead of her majesty's desire being signified by the lord chan- 
cellor, in the house of lords, a minister of the crown, in the 
commons, informs the house that her majesty " gives leave to the 
house to proceed forthwith to the choice of a new speaker ;" 4 and, 
when the speaker has been chosen, the same minister informs the 
house that it is her majesty's pleasure that the house shall present 
the speaker, on the next day, in the house of peers, for her 
majesty's royal approbation. The speaker then puts the question 
for adjournment. On the following day the royal approbation is 
given, by the lords commissioners, . under a commission for that 
purpose, with the forms already described. The royal approval 
of the speaker's election having been granted, the oath of office is 
taken by the speaker first, and then by the other members of the 

1 90 Com. J. 5. 3 80 Lords' J. 8 ; 89 id. 7. 

2 96 id. 465 ; 103 id. 7 ; 108 id. 7 ; 112 4 94 Com. J. 274 ; 127 id. 23. 
id. 119. 



570 

house. The following is the oath ;?■ "I, — , do swear that I will 
be faithful, and bear true allegiance, to her majesty queen Victoria, 
her heirs and successors, according to law, so help me God." 2 
The ceremony of receiving the royal permission to elect a speaker, 
and the royal approbation of his election, has been constantly 
observed, in England, except during the civil war and the common- 
wealth, and on three other occasions, when peculiar circumstances 
prevented its observance. 3 The other principal officers of the 
house of commons are the clerk, the clerk-assistant, the second 
clerk-assistant, and the sergeant-at-arms. The clerk is appointed, 
by the crown, for life, by letters-patent. The assistant- clerks are 
appointed, by the crown, on the recommendation of the speaker, 
and are removable only upon an address of the house. 4 The 
sergeant-at-arms is appointed by the crown, under a warrant from 
the lord chamberlain. 5 

§ 674. The lord chancellor, or lord keeper of the great seal of 
England, is prolocutor, or speaker, of the house of lords, by pre- 
scription. He may or may not be a peer. 6 The other principal chief 
officers of the house of lords are the clerk of the parliaments, the 
clerk-assistant, the gentleman usher of the black rod, and the ser- 
geant-at-arms. All of them are appointed by the crown, except 
the clerk-assistant, who is appointed by the lord chancellor^with 
the approval of the house of lords. 7 

§ 675. In those states whose constitutions contain provisions, 
relating to the choice of officers of the state senate and house of 
representatives, substantially like those of the federal constitution, 
relating to the choice of officers of the senate and house of repre- 
sentatives of the United States, the same principles apply to the 
election of officers of the respective houses of the state legislature, 
as to the election of the officers of the two houses of the federal 
legislature, and substantially the same practice obtains in both 
cases. 

§ 676. The constitution of the state of Alabama contained the 
following provision : " Chancellors, judges of the supreme court, 
judges of the circuit courts, and judges of the inferior courts shall 

] 31 & 32 Vict. c. 72. 5 May Pari. Pr. 237. 

3 May Pari. Pr. 191-6. c Id. 228. 

3 Id. 194. 7 Id. 238. 

4 Id. 239. 



571 

be elected, by joint vote of both houses of the general assembly." 1 
In an election to the office of county judge M. received 33, and D. 
32, votes ; and the president of the joint convention announced 
that M. was duly elected. After this announcement was made, and 
before the joint convention adjourned, other- members appeared 
and asked leave to vote. But the president decided that they could 
not then lawfully vote. Thereupon a motion was made and carried 
to hold another election. In the second election D. received a 
majority of the votes, and was declared duly elected. M. applied 
to the governor of the state for a commission. The governor re- 
fused to commission M., but commissioned D. On the hearing of 
a rule against D., to show cause why an information, in the nature 
of a quo Avarranto, should not be filed, the supreme court of the 
state held " that it was perfectly competent for the two houses of 
the legislature, while they were assembled together for the purpose 
of making the election, to revise, or alter, what they had done while 
thus assembled." 2 

§ 677. The constitution of the state of Kansas required the state 
printer to be "elected by the legislature, in joint session." 3 A 
statute, enacted before the adoption of this constitutional provi- 
sion, declared that "to elect any person in said joint convention, 
a majority, acting in the affirmative, of all the members elected 
to the two houses shall be necessary." The constitution con- 
tained the following sections : " In the future apportionments of the 
state, each organized county shall have at least one representative, 
and each county shall be divided into as many districts as it has 
representatives." " It shall be the duty of the first legislature to 
make an apportionment, based upon the census ordered by the 
last legislative assembly of the territory ; and a new apportion- 
ment shall be made, in the year 1866, and every five years there- 
after, based upon the census of the preceding year." 4 The 
apportionment act, passed in pursuance of these provisions, 
contained the following section: "The senate shall consist of 
thirty -three members, and the house of representatives of ninety 
members ; but the number of representatives may be increased, 
by the organization of new counties, to not more than one hun- 
dred : Provided, That no county, not now organized, shall be 

1 Const. Ala. 1819, art. 5, s. 12. 3 Const. Kan. 1868, art. 15, s. 4. 

2 State v. Dunn, 1 Miner, Ala. 46. 4 Gen. Stat. Kan. 1868, 547. 



572 

entitled to more than one representative, until the next appor- 
tionment." 1 In an election, held by a joint convention of the 
legislature, one of the candidates received the votes of a majority 
of all the members who were present and voted, but not of all the 
members elected. The questions were, first, whether the votes of 
a majority of all the members elected to the two houses were 
essential to a valid election ; second, whether, under the constitu- 
tion and laws, the house of representatives included the repre- 
sentatives of the ten districts in controversy, and whether, on that 
question, the action of the house, in admitting them to seats, was 
conclusive on the courts. The supreme court of the state, upon 
an application for a mandamus, by the candidate who received a 
majority of the votes cast, decided that the statute, which made 
the votes of the majority of all the members elected to the two 
houses necessary for a valid election by a joint convention, was 
not repealed by the subsequent constitutional provision that the 
state printer should be " elected by the legislature, in joint ses- 
sion;" that the legislature did not transgress the limits of its 
constitutional power, in the enactment of this statute ; that it was 
competent for the court to inquire, in that proceeding, whether 
the house of representatives included the representatives of the 
districts in question ; and finally, that these representatives were 
lawful members of the house. 3 

§ 678. The legislature cannot directly, or indirectly, remove the 
incumbent of an office created by the constitution, during a term 
fixed by that instrument. This doctrine is not based upon the 
idea that the state has entered into a contract with the incumbent, 
by which it has irrevocably bound itself to accept his services, for 
a specified time, though it is undoubtedly true that, in some sense, 
and for many purposes, the incumbency of an office rests on a 
right of property, which the courts will protect. But the funda- 
mental principle, which prohibits the removal, by legislation, of 
a constitutional officer, during- a constitutional term, is that the 
framers of the organic law, by creating the office, and specifying 
the term, unmistakably indicate their will that the state shall always 
have such an officer, and that the duration of the term of each 
incumbent shall depend, not on the action of the legislature, but 

*Laws Kan. 1871, 32. 2 Prouty v. Stever, 11 Kan. 235. 



573 

on the solid basis of an ordinance, which can only be changed by 
an amendment -of the constitution itself. 1 

§ 679. Yotes cast for an ineligible candidate, in a joint conven- 
tion of a state senate and house of representatives, held to fill 
a vacancy in the senate, under a provision of the state constitu- 
tion, 2 cannot be regarded as blanks, with the result of electing the 
eligible candidate receiving the next highest number of votes. 3 It 
was held, by the supreme court of Indiana, that where the legis- 
lature elected A., B., and C. to the office of state prison commis- 
sioners, as successors of D., E., and F., respectively, and A. was 
ineligible, and F.'s place was not vacant, all votes cast for A. were 
nullities ; but C. could not, for that reason, claim the place vacated 
by D., to which he was not elected. 4 

§ 680. Under a constitution, empowering the state senate and 
house of representatives, to fill a vacancy in the representation of 
any senatorial district, by the election of one of " such persons 
who shall be found to have the highest number of votes, in such* 
district, and not elected, amounting to twice the number wanted, 
if there be so many voted for," 5 it is proper to omit from the list, 
from which the choice is made, one who, although eligible to the 
office, at the time of the election, has subsequently become ineli- 
gible. 6 Under such a constitution, 7 it is proper to include, in the 
list from which the choice is made, several- candidates having the 
same number of votes, although the list so formed may contain 
more than "twice the number of senators wanted." 8 

§ 681. A joint resolution declaring that " all elections, by the 
general assembly, to fill vacancies in the office of judge, shall be 
for the unexpired term of his predecessor," is not in conflict with 
constitutional provisions that the manner " of filling vacancies in 
office, in cases not specially provided for by this constitution, shall 
be prescribed by law," and that " the judges shall be chosen by 
the joint vote of the two houses of the general assembly, and shall 
hold their office for the term of twelve years." 9 



1 Fant v. Gibbs, 54 Miss. 396. 

2 Const. Mass. art. 4. s. 2. 

3 Knowlton v. Rice, L. & R. 80. 

4 Price v. Baker, 41 Ind. 572. 

5 Const. Mass. art. 4, s. 2. 



6 Knowlton v. Rice, L. & R. 80. 

7 Const. Mass. art. 4, s. 2. 

8 Knowlton v. Rice, L. & R. 80. 

9 Burks v. Hinton, 77 Va. 1 (overruling 
Meredith's case, 33 Gratt. 119). 



CHAPTER XXX. 



ELECTION OK APPOINTMENT OF PUBLIC OFFICEKS BY OTHER 

AUTHORITIES. 

Secs. Secs. 



1. By mayor; common council ; al- 

dermen .... 682-689 

2. By court of record . . . 690 

3. By boards of trustees or commis- 

sioners .... 691-693 



4. By justices of the peace . . 694 

5. By other public officers . 695-697 

6. Corrupt agreements . . . 698 



§ 682. When a private authority is conferred upon several 
persons, all must be present and all must concur, unless provision 
be otherwise made. When a public authority is conferred upon 
individuals (not a court), who are to act judicially, all must confer 
together, but a majority may decide. In England each part of a 
municipal corporation is an integral part, and neither can act with- 
out the others. In the United States, when a public body is 
composed of several different public bodies, meeting in joint con- 
vention, the absence of one of the constituent branches will not, of 
itself, defeat the action of the body. In England, when a majority 
of a corporation may decide, if notice be given to all, and the 
number of the members of the corporation be definite, a majority, 
attending, will constitute a valid assembly ; and if the number of 
members of the corporation be indefinite, those who attend, 
though less than a majority, may also act. The same rule applies 
to other public bodies, not acting judicially, especially if engaged 
in the election of officers. 1 

§ 683. Where the charter of a municipal corporation provides 
that the mayor shall be chosen annually, at a meeting of a 
" majority of the chief burgesses existing at the time," an election, 
by a meeting, at which only, a minority are present, is illegal. 2 

1 People *>. Walker, 23 Barb. 304 ; Rex v. Burton, 6 T. R. 592 ; Withnell 

Grindley v. Barker, 1 Bos. & Pull. 236 ; v. Gartham, id. 388 ; People fl. Whiteside, 

Green v. Miller, 6 Johns. 39 ; Rex v. 23 Wend. 9 ; Downing v. Rugar, 21 id. 

Miller, 6 D. & E. 269 ; Attorney-General 178; Sargent v. Webster, 13 Mete. (Mass.) 

v. Davy, 2 Atk. 212 ; Willcock's case, 7 504. 

Cow. 402 ; Field v. Field, 9 Wend. 394 ; 2 Rex v. Grimes, 5 Burr. 2598. 
Blucket 9. Blizard, 9 Barn. & Or. 851 ; 

574 



575 

Under a royal charter, conferring the power to elect burgesses of 
municipal corporations upon the whole body, a by-law, made by the 
whole body of the corporation, restricting the right of electing 
burgesses to a select body of the corporation, was held to be valid, 
by the house of lords, after great doubt and prolonged debate. 1 
Where the power of election resides in a select body of a munici- 
pal corporation, and no notice of an election to fill a vacancy is 
required by law, and the whole corporation is summoned to 
receive the resignation of a common councilman, a select body of 
the corporation, all being present and consenting, may, at the 
same meeting, without any particular summons for the members 
of the select body for that purpose, in their select capacity pro- 
ceed to elect a common councilman to fill the vacancy. 3 Where 
the charter of a corporation, consisting of a mayor and twenty-four 
capital burgesses, provided that whenever any one, or more, of the 
members, should die, or remove from the borough, or be removed 
from office, it should be lawful for the other capital burgesses, 
" at that time surviving, or remaining, or the greater part of the 
same," of whom the mayor for the time being should be one, to 
elect another, and a burgess was elected, to fill a vacancy occa- 
sioned by death, by twelve capital burgesses only, who did not 
appear to be all then existing, the court of king's bench held that 
the election was void because not made by a majority of the 
whole definite body; that the words "greater part of the same" 
meant the greater part, not of those " surviving or remaining," but 
of the entire body. 3 

§ 684. The set of a burgh having provided that, in case the 
dean of guild, elected by the guildry, shall not produce legal 
evidence of his qualification, in the meeting of the council appointed 
to receive him after his election, the council shall immediately 
elect a dean in his place, the council is required to follow this rule 
strictly, and to elect a dean itself, in virtue of the powers so con- 
ferred upon it, but is not entitled to judge of the merits of a 
contested election in the guildry, or to declare that another can- 

1 Bex v. Westwood, 4 Bligh, 213. Cowp. 248 ; Kegina v. Locke, 6 Vin. Abr. 

2 Kex v. Theodoric, 8 East, 543. 269 ; Bex v. Grimes, 5 Burr. 2598 ; Bex 

3 Bex v. Willyams, 3 Dowl. & Byl. 75. v. Monday, Cowp. 537 ; Bex v. Bower, 2 
See also Bex v. Morris, 4 East, 17 ; Bex Dowl. & Byl. 761, 842. 

v. Bellringer, 4 T. B. 820 ; Bex v. Varlo, 



576 

didate was elected. 1 It was a custom of the city of London that, 
when the inhabitants of any ward should three times elect, and 
return to the court of aldermen, the same person, to be alderman, 
who should be, by the said court, according to another custom of 
the city, adjudged, on such three returns, not to be a fit person to 
support the dignity and discharge the duties of the office, the 
mayor and aldermen might elect and admit a fit person, being a 
freeman, out of the whole body of the citizens, to be alderman of 
the ward. It was held, by the house of lords, that this was a 
valid custom ; and that it was not abrogated by an act of parlia- 
ment, declaring that the right to elect aldermen should " belong 
to freemen of the city being householders of the wards, and to none 
other whatsoever," nor by a by-law of the city, providing that, 
thenceforth, in all elections of aldermen, at the ward motes, there 
should be elected " only one able and sufficient citizen and freeman 
to be returned to the court of mayor and aldermen," which person, 
so elected, should be by them admitted to the office. 2 

§ 685. Under a statute declaring that, " previous to any meeting 
of the council held by virtue of this act, a notice of the time and 
place of such intended meeting shall be given three clear days at 
least before such meeting," 3 a coroner cannot be elected, at a 
meeting of the council held, by adjournment from a quarterly 
meeting, no summons or notice having been previously served, 
upon the members of the council, stating that such business was 
to be transacted. 4 Under an act providing that " the board of 
trustees of each incorporated town of this state shall, at their first 
regular meeting, in the month of June, elect three school trustees," 5 
it was held that the duty to elect was imperative ; but that, as to 
the time of the election, the statute was directory only. 6 Under 
a statute, providing that " all vacancies, that may occur in said 
board of school trustees, shall be filled by the common council of 
the city, or board of trustees of the town," 7 when a school 
trustee resigns his office, the resignation to take effect at a future 
day, the city council may hold an election, to fill the vacancy, 
before the day fixed for the taking effect of the resignation. 8 

1 Kay v. Magistrates, 5 Fac. Dec. 549 ; 4 Regina v. Grimshaw, 10 Q. B. 747. 

Magistrates v. Lindsay, 5 W. and S. 152 ; 5 Acts Ind. 1875, Reg. Sess. 135. 

8 s. 688. 6 Sackett ffl. State, 74 Ind. 486. 

2 Rex o. Johnson, 6 CI. & Fin. 41. 7 Stat. Ind. Rev. 1876, 780. 

3 5 & 6 W. 4, c. 76, s. 69. 8 Lynch v. State, 78 Ind. 570. 



577 

§ 686. If all the members of a common council be present, at 
the election of n clerk, held pursuant to law, the refusal of one- 
half the number to vote will not invalidate the election. 1 But in 
England, while the only way to defeat the election of one candidate 
for parliament is to vote for another, yet when a person is pro- 
posed as alderman, the corporation may vote against him, without 
voting for another. 2 Under statutory provisions, authorizing a 
justice of the peace to appoint a clerk of his court, with the con- 
sent of the common council, and requiring that every ordinance 
and resolution of the common council shall, before it takes effect, 
be approved by the mayor, or passed over his veto, by a two-thirds' 
vote, a resolution, confirming. an appointment of a clerk made by 
a justice of the peace, must be approved by the mayor, or passed 
over his veto, by a two-thirds' vote, in order to validate the appoint- 
ment. 3 Under a statute providing that, "in all cases in which 
appointments are directed to be made by the mayor and aldermen, 
in any city of the commonwealth, the mayor shall have the exclu- 
sive power of nomination, being subject, however, to confirmation, 
or rejection, by the board of aldermen," a person nominated can 
only be confirmed by the votes of a majority of the aldermen 
voting on the question. If the formal question voted on be not 
whether the nomination shall be confirmed, but whether it shall 
be rejected, the result of a tie vote will be to reject the nomina- 
tion ; and the fact that, in such a case, the mayor announces that 
the nominee is confirmed, without objection on the part of the 
aldermen, and his bond is accepted, and he takes the oath of office, 
and enters upon his official duties, gives no validity to the election, 
on an information in the nature of a quo warranto. 4 

§ 687. When the law requires an election of overseers of the 
poor to be made by joint ballot of the two branches of the city 
council, an election by their separate action is sufficient to give 
color of title to the office, in an action for pauper supplies fur- 
nished by the overseers. 5 In the absence of statutory provision 
to the contrary, it is competent for the members of a common 
council to choose their clerk on motion, the person named in the 

1 State v. Green, 37 Ohio St. 227. 4 Commonwealth v. Allen, 128 Mass. 

2 Kex v, Monday, Cowp. 530. 308. 

3 People v. Schroeder, 76 N. Y. 160. 5 Inhabitants of Belfast v. Inhabitants 

of Morrill, 65 Me. 580. 
37 



578 

motion being the only candidate in nomination. 1 Under a stat- 
utory provision that the mayor, with the approval of the common 
council, " shall biennially appoint certain officers named, who shall 
continue in office until their successors have been appointed and 
duly qualified," 2 if a street commissioner be appointed, by a 
mayor, just before the expiration of his term of office, but not 
confirmed, and a new appointment be made, by his successor, and 
confirmed, the new appointee will be entitled to the office. 3 When 
an election of two police commissioners is held, by a common 
council consisting of fourteen members, under an unconstitutional 
rule permitting each member to vote for only one of the two com- 
missioners, and A. receives eight votes and B. six, no other votes 
being cast, A. and B. are both duly elected. 4 

§ 688. It seems that no appointment to a civil office can be made 
verbally, save when permitted by the statute ; in the absence of 
such permission there must be a written appointment, signed by 
the official invested with the power of appointment, clearly show- 
ing his intention to appoint the person named, his belief that the 
writing is such as the statute requires, and his intention to make 
it the consummation of the appointment. 5 Under a statute author- 
izing the mayor to appoint commissioners of excise, and pro- 
viding that the commissions of all civil officers, except those 
appointed by the governor and senate, or by the governor alone, 
" when no special provision is made by law, shall be signed by 
the presiding officer of the board, or body, or by the person 
making the appointment," 6 any written instrument, signed by the 
person making the appointment, with the intent to make it, and 
showing that he has made it, although not delivered to the 
appointee, is a sufficient commission ; and a nomination, by the 
mayor, to the common council, followed by the confirmation of 
the nomination, by the common council, and the administration 
of the oath of office to the appointee, amounts to a valid com- 
mission. The validity of the appointment is not impaired by the 
void action of the common council. Nor is any further commis- 
sion necessary. 7 Under a statute making the provost one of the 

? State v. Green, 37 Ohio St. 227. 5 People v. Murray, 70 N. Y. 521. 

2 Stat. N. Y. 1870, c. 77, title 3, s. 10. 6 Eev. Stat. N. Y. 118, s. 19. 

3 People v. Kilbourn, 68 N. Y. 479. 7 People ®. Fitzsimmons, 68 N. Y. 514. 

4 People v. Orissey, 91 id. 616. 



579 

third of the town council retiring from office, he is not entitled, 
either by virtue t)f the office which he has held, or as a councillor 
newly elected, to preside and give a casting vote, at the election 
of a new provost, in case of an equality of votes in the council. 1 

§ 689. There is no legal mode of contesting the proceedings of 
a town council, in the election of magistrates, in Scotland, except 
either by petition and complaint, in pursuance of the statute, or 
by action of " reduction," where the petition and complaint are 
inapplicable. 2 An application for suspension and interdict is 
competent, in Scotland, in the case of a party alleging that, on the 
face of the minutes, he appears to have been elected provost, and 
that he is molested by another party also claiming to have been 
elected provost ; 3 and it is only necessary to make the person, so 
molesting the complainant, a defendant in the proceeding. 4 

§ 690. The constitution of Illinois contained the following pro- 
visions : " The powers of the government of the state of Illinois 
shall be divided into three distinct departments, and each of them 
be confided to a separate body of magistracy, to wit, those which 
are legislative to one ; those which are executive to another ; and 
those which are judicial to another. No person, or collection of 
persons, being one of these departments, shall exercise any power 
properly belonging to either of the others, except as hereinafter 
expressly directed, or permitted, and all acts in contravention of 
this section shall be void ;" 5 but it contained no provision expressly 
declaring that municipal officers should be appointed by any 
particular department of the government, or that such appoint- 
ment was the exercise of either legislative, executive, or judicial 
power. It was held that the authority, conferred by statute upon 
judges of the circuit court of a county, to appoint municipal officers 
to fill vacancies, was not in conflict with the foregoing constitutional 
provisions. 6 Under a constitutional provision that judges shall 
continue in office, until their successors are elected and qualified, 
an election of clerk, by the outgoing judges, after their successors 
are elected and commissioned, but before they are qualified, is a 
valid election. 7 In Tennessee a chancellor, appointed by the 

1 Dunlop v. Fleming, 13 Fac. Dec. 243. 5 Const. 111. 1848, art. 2, ss. 1, 2. 

2 Orr v. Vallence, 7 id. 90. 6 People v. Morgan, 90 111. 558. 

3 Dunlop v. Fleming, 13 id. 243, 7 Bonner v. State, 7 Ga. 473, 

4 lb. 



580 

governor, to fill a vacancy, in pursuance of the statute, is invested 
with all the powers of a chancellor elected by the people, and his 
appointment of a clerk, for the constitutional term of clerk, is 
valid. 1 Under a state constitution declaring that "in the gov- 
ernment of this commonwealth, the legislative department shall 
never exercise the executive or judicial powers, or either of them ; 
the executive shall never exercise the legislative or judicial powers, 
or either of them ; the judicial shall never exercise the legislative 
or executive powers, or either of them," 2 it is not competent for 
the legislature to vest the power to appoint supervisors of elec- 
tions in the justices of the supreme court. 3 But that clause of 
the constitution, in which it is declared that " congress may, by 
law, vest the appointment of such inferior officers, as they think 
proper, in the president alone, in the courts of law, or in the heads 
of departments," empowers congress to vest in the circuit courts 
the appointment of supervisors of elections. 4 

§ 691. When the statute empowers a board of county commis- 
sioners to elect a public officer, as, for example, a treasurer of the 
county, without prescribing rules for their procedure, they are 
governed by the fundamental rules which the common law has pro- 
vided for the proper exercise of their corporate functions. To 
authorize the county board to proceed to the election of an officer, 
it is necessary that a majority of its members be present ; but, 
if the majority of those present either refuse to vote, or vote in 
a manner different from that prescribed by law, as viva voce, when 
the law requires them to vote by ballot, a minority, — even a single 
member, — may make an election. The presence of a quorum may 
be shown, not exclusively by the legal votes actually given, but 
by other proof. 5 Protesting electors can only defeat the election 
by their votes ; if, being present, they do not vote at all, they vir- 
tually acquiesce in the election made by those who do. 6 Under 
a constitutional provision that " all elections shall be by ballot, 
except those by persons in their representative capacity," 7 a repre- 
sentative in the state legislature, who is ex officio a member of a 
board, constituted, by law, for the election of certain officers, must 



1 Gold v. Fite, 2 J. Baxt. 237. 

2 Decl. of Rights, Mass. art. 30. 

3 Supervisor's case, 114 Mass. 247. 
4 Siebold's case, 100 U. S. 371. 



5 Commonwealth v. Read, 2 Ashm. 261. 
R Rex v. Foxcroft, 2 Burr. 1017. 
7 Const. Penn. 1790, art. 3, s. 2. 



581 

vote, at such election, by ballot, and not viva voce. He votes, in his 
representative capacity, in the general assembly, and not else- 
where. 1 Where the statute requires an appointment to be made 
by warrant, under the hands and seals of three officers, a warrant, 
made under the hands and seals of two, will be a valid execution 
of the power of appointment ; but an appointment of one of their 
own number will be illegal. A warrant, conferring a public fran- 
chise, in which the same person appears as grantor and grantee, 
is void. 2 Under a regulation providing that "every officer and 
assistant, to be appointed under this order, shall be appointed by 
a majority of the guardians present at a meeting of the board," 
if the vote stand ten for one candidate, and eleven for another, the 
chairman declining to vote, although entitled to do so, the election 
will be void. 3 

§ 692. The election of treasurer, for the county of the city of 
Dublin, being ^vested, by act of parliament, 4 in "the board of 
magistrates of the county of said city," and required to be held 
at the sessions court of the city, by vote of the magistrates there 
present, it was decided by the house of lords, that the recorder of 
Dublin was a member of that board, and ought to have been sum- 
moned to the meeting ; and that the failure to summon him 
rendered the election, which was held in his absence, invalid. 5 
Under a statute providing for an election of a superintendent of 
a school fund, established for that part of Warren county which 
lies within the Virginia military district, " by the members of the 
boards of education of the several townships, parts of townships, 
separate and special school districts, in that part of the county of 
Warren, entitled to said fund," 6 each member of the several boards 
of education, whose districts are composed of territory, in whole, 
or in part only, within the military district, and entitled to share 
in the fund, has a right to vote at such election, whether such 
member resides within the military district or not. 7 The general 
rule that a majority of each constituent part of an electoral body 
must be present at an election, cannot apply to a corporation con- 
sisting of a mayor, two bailiffs, and four jurats, because, in the 

1 Commonwealth v. Kead, 2 Ashm. 261. 6 Smyth v. Darley, 2 H. L. Cas. 789. 

2 People v. Thomas, 33 Barb. 287. 6 65 Ohio L. 260. 

3 Eegina v. Griffiths, 17 A. & E. 164. 7 State v. Randall, 35 Ohio St. 64. 

4 49 Geo. 3, c. 20. 



582 

event of the death, or removal, of one of the two bailiffs, it is im- 
possible that a majority of all the bailiffs shall be present, at the 
election of a new bailiff. 1 Under a statute providing that "the 
chairman shall, at such meeting, declare the names of the parish- 
ioners, who have been elected by a majority of votes, at such 
meeting," 2 the decision of the chairman, on a show of hands, that 
one or the other candidate has a majority, is not conclusive ; but 
he is bound, on requisition from either side, to take steps for ascer- 
taining the numbers. 3 

§ 693. Under a general law providing that " any officer, elected, 
or appointed, to fill a vacancy, shall be commissioned or receive a 
certificate of election, or appointment, to such office," 4 while the 
right of a person, elected to an office, is established by the elec- 
tion, and does not depend on his commission, because the choice 
is made by the people, who perform the last act required of them 
when they vote, and the issuing of the commission is merely a 
ministerial act, the appointment, by a board of supervisors, is not 
complete until the appointee receives a proper certificate of his 
election. An appointment, duly made, may be reconsidered and 
revoked before the certificate is issued, and another appointment 
made. 5 A statute conferring upon an officer, or board of officers, 
the power to fill a vacancy, occasioned by the death, resignation, 
or removal of a particular officer, by appointment, until the next 
general election, although not expressly authorized by the consti- 
tution, is not in conflict with a provision of the constitution for 
the election of such officer. The exercise of this power is essential 
to prevent great and obvious injury to the public. A statute 
authorizing an appointment for a full term, in such a case, would 
be unconstitutional. 6 A person appointed by the county com- 
missioners, according to law, in the place of a county treasurer 
removed by them, is the successor of such county treasurer, and 
is required to perform all the duties of the office until another 
treasurer is elected, and, as such officer, has the right to demand 
the funds in the hands of the treasurer so removed, and, upon his 
failure to pay over the same, may institute a suit on his official 
bond. 7 

1 Rex v. Greet, 8 B. & C. 363. 5 Conger v. Gilmer, 32 Cal. 75. 

2 1 & 2 W. 4, c. 60, s. 14. 6 Hedley v. Commissioners, 4 Blackf. 

3 Regina v. Vestrymen, 11 A. & E. 15. 116. 

4 Stat. Cal. 1863, p. 388, s. 16. 7 Stern v. People, 102 111. 540. 



583 

§ 694. Where the statute authorizes the justices of the peace 
of the county to meet on a specified clay, at the call of the county 
judge, and elect the associate justices of the court of quarter ses- 
sions, and provides that " the county judge shall preside over the 
convention, and the county clerk shall be its clerk ;" and that " a 
certificate of election shall be given, by the county judge and 
clerk, under the seal of the court of sessions, to the persons who 
receive a majority of all the votes cast," 1 the presence of the 
county judge and clerk is not essential ; and, if they refuse to 
attend, the election by the justices will nevertheless be valid. If 
the county judge refuse to convene the justices of the peace, they 
may nevertheless meet, upon actual notice to all the justices, and 
hold a valid election. 2 And where the law authorizes the justices 
of the peace to meet, on the day designated, without providing 
that the election shall be consummated on that day, and author- 
izes the county judge to fill vacancies in the office of associate 
justice, for a term of court, by appointment, the justices of the 
peace, if they fail to elect on the day specified, may subsequently 
assemble and elect ; and the officers so elected will hold from the 
expiration of the term of court, when the functions of appointees 
of the county judge will end. 3 

§ 695. Under a statute in the following words : "The said 
jurors shall be selected by a person, to be appointed by the 
supervisors of said city, the judges of the superior court, and the 
judges of the court of common pleas of said city and county," 4 
in the absence of any other statutory provision relating to the 
powers, duties, or proceedings of the tribunal created to make 
the appointment, the supervisors and judges of the superior 
court and court of common pleas are to meet, in joint conven- 
tion, after due notice to all, and a majority of the whole 
number constitute a quorum, and are competent to make the 
appointment. It is not essential to the validity of the appoint- 
ment that each one, or that a majority, of the bodies, whose 
members constitute the appointing tribunal, should be represented 
at the meeting. It will be sufficient if a majority of the individual 
members of the tribunal be present. 5 A judge of election cannot 

1 Stat. Cal. 1853, p. 745, c. 6, s. 50. * Stat. N. Y. 1847, p. 734, s. 2. 

2 People v. Campbell, 2 Cal. 135. "People v. Walker, 23 Barb. 304. 

3 lb. 



584 

appoint a return inspector, after his removal from the precinct. 
The electors at the polls may choose an inspector. 1 

§ 696. An apointment to an office, for the life of the appointee, 
is not invalid, in Scotland, upon the sole ground that the person 
making the appointment only holds his own office for life. And 
when the holder of an office enjoyed the right to appoint a 
sub-officer, a statute, enacted to regulate that and other offices, 
providing that, " upon the termination, respectively, of the present 
existing interests in the undermentioned offices, and so soon as 
the said offices shall become vacant," their regulation should be 
vested in the lords of the treasury, and, after the passage of the 
act, the sub-officer died, and the officer appointed another person 
and died, the house of lords held that, on his death, the sub-office 
became vacant ; for the words " existing interests," in the statute, 
did not mean the right of the holder of one office to appoint 
another. 2 

§ 697. A statutory enactment that " when, from any cause, a 
judge shall fail to attend, on the first day of the term of a circuit 
court, for any county, to hold the same, the attorneys at law, 
practicing in said court, or a majority of those in attendance, by 
writing under their hands, may appoint some discreet and proper 
person, learned in the law, and a citizen of the state, to act as 
judge of the said court, for the term," 3 is warranted by a constitu- 
tional requirement that " the legislature shall provide, by law, for 
holding circuit courts, when, from any cause, the judge shall fail 
to attend, or, if in attendance, cannot properly preside ;" 4 and is 
valid authority for the choice of a special judge, for a regular term 
of the circuit court. 5 When the constitution provides that "the 
Legislature may, by general laws, make provision that special judges 
may be appointed, to hold any court, the judge of which shall be 
unable, or fail, to attend, or sit, or to hear any cause, in which the 
judge may be incompetent," 6 it is competent for the legislature 
to vest the appointment of special judges in the members of the 
bar. 7 

§ 698. A note, executed in consideration of the payee's agree- 

1 Thompson v. Ewing, 1 Brewst. 67. 4 Const. W. Va. 1872, art. 8, s. 16. 

2 Earl of Rosslyn v. Aytoun, 11 01. & 6 State v. William, 14 W. Va. 851. 
Fin. 742. . 6 Const. Tenn. 1870, art. 6, s. 11. 

3 Stat. W. Va. 1872-3, c. 129, s. 1. 7 Halliburton v. Brooks, 7 J. Baxt. 318. 



585 

ment to resign a public office, in favor of the maker, and to use 
his influence to secure the appointment of the latter, as his suc- 
cessor, is void, except in the hands of a bona fide holder without 
notice. 1 A perpetual injunction was granted against a bond for 
the purchase of an office, upon the ground of the " public policy 
of the law," although the office was not within the prohibition of 
the act of parliament. 2 

1 Meacham v. Dow. 32 Verm. 721. 2 Harrington v. Du Chatel, 1 Brown, 

Eng. Ch. 124. 



CHAPTER XXXI. 

EXECUTIVE APPOINTMENTS. 

Secs. Secs . 

1. For full terms . . . 699-703 | 2. To fill casual vacancies . 704-707 

§ 699. The power of appointment, conferred upon the executive, 
by the constitution, or laws, is to be exercised in conformity with 
their requirements. In England an illegal grant of an office by 
the crown may be set aside by the courts. A grant of an office 
of chamberlain of a royal forest, and of " an annuity, or yearly 
salary, as well in consideration of the said office, as out of the 
royal bounty," which salary amounted to more than the whole 
revenue to be collected, the surplus being made up out of another 
source of royal revenue, was set aside, by the house of lords, as 
being the grant of a pension, under cover of the grant of an office, 
and as an alienation of the crown property. 1 A grant by the king, 
of an office, held for life, by one person, to another for life, to take 
effect presently, with or without a recital of a former grant for life, 
is void ; for it cannot take effect according to his intent. If he will 
have it effectual, he ought to grant it as the law requires, to take 
effect after the death of the first grantee. 2 In the United States, 
executive appointments, made without constitutional or statutory 
authority, may be annulled by the courts. Under the constitution 
the discretion of the president is to be exercised until the 
appointment has been made. But, having once made the appoint- 
ment, his power over the office is terminated, in all cases where 
by law the officer is not removable by him. The right to the office 
is then in the person appointed, and he has the absolute uncondi- 
tional power of accepting or rejecting it. 3 

§ 700. The last act to be performed, by the president, is the 
signature of the commission. He has then acted on the advice 
and consent of the senate to his own nomination. His judgment, 
on the advice and consent of the senate concurring with his nom- 

^unglas v. Officers of State, 1 Bell, ' 2 Kegina v. Bushopp, 1 Coke, 128; 

537. Earl of Kutland's case, 4 id. 251. 

3 Marbury v. Madison, 1 Cranch, 137. 

586 



587 

ination, lias been made, and the officer is appointed. This appoint- 
ment is evidenced by an open, unequivocal act, which, being the last 
act required from the person making it, necessarily excludes the 
idea of its being, so far as respects the appointment, an inchoate 
and incomplete transaction. Some point of time must be taken, 
when the power of the executive over an officer, not removable at 
his will, must cease. That point of time must be when the constitu- 
tional power of appointment has been exercised. And this power 
has been exercised, when the last act required from the person 
possessing the power has been performed. This last act is the 
signature of the commission. If delivery be necessary to give 
validity to the commission, it has been delivered when executed 
and given to the secretary of state, to be sealed, recorded, and 
transmitted to the officer. 1 Much more, it would seem, is a com- 
mission issued by the executive of a state, incapable of being 
recalled or invalidated by himself, when the appointing power is 
located elsewhere, and when his act, in issuing the commission, is 
not discretionary with him, but only the performance of a minis- 
terial duty. 2 An appointment to a public office, originally coupled 
with a condition that was never performed, becomes a valid appoint- 
ment when the appointing power, having authority to do so, sub- 
sequently dispenses with the condition. 3 It is against public policy 
for an officer to' use his appointing power to place himself in office. 4 
§ 701. The commission being signed by the president, the sub- 
sequent duty of the secretary of state is prescribed by law, and is 
not to be guided by the will of the president. He is to affix the 
seal of the United States to the commission, and to record it. 
This is not a proceeding which may be omitted, or varied, at the 
command of the president ; but is a precise course accurately marked 
out by law, and is to be strictly followed. The acts enjoined upon 
the secretary are ministerial acts. 5 When an appointment is 
made by the president,, by and with the advice and consent of the 
senate, and is evidenced by no act but the commission itself, the 
commission and appointment seem inseparable. Still the com- 
mission is not necessarily the appointment, though conclusive 
evidence of it. 6 Congress may provide that certain acts shall be 

1 Marbury v. Madison, 1 Cranch, 137. 4 State v. Hoyt, 2 Oregon, 246. 

2 Ewing v. Thompson, 43 Penn. St. 5 Marbury v. Madison, 1 Cranch, 137. 
372. 6 Ib. 

3 State v. Ring, 29 Minn. 78. 



588 

performed, by the appointee, before he shall enter upon the pos- 
session of the office, under his appointment. These acts then 
became conditions precedent to the complete investiture of the 
office ; but they are to be performed by the appointee, and not by 
the executive ; all that the executive can do, to invest the person 
with his office, is completed when the commission is signed and 
sealed ; and when the person performs the prescribed conditions, 
his right to enter upon possession of the office is complete. 1 

§ 702. In a constitutional provision that " the governor shall 
nominate, and, by and with the advice and consent of a majority 
of the senators elect, appoint all officers, whose offices are estab- 
lished by this constitution, or which shall be created by law, and 
whose appointments are not otherwise provided for, and no such 
officer shall be appointed, or elected, by the general assembly," 2 
the words " not otherwise provided for " mean not otherwise pro- 
vided for by the constitution ; and the words " no such officer 
shall be appointed, or elected, by the general assembly," are super- 
added, as an express restriction upon the power of the legislature, 
whether the office be created by the constitution, or by statute. 3 
Under a constitutional provision that " the legislature, by general 
and uniform laws, shall provide for the election, or appointment, 
in the several counties, of boards of supervisors, sheriffs, county 
clerks, district attorneys, and such other county, township, and 
municipal officers, as public convenience may require, and shall 
prescribe their duties, and fix their terms of office," it seems that 
the legislature has power to provide that all county officers shall 
be appointed instead of being elected. 4 Under a constitution 
declaring that " the governor shall nominate, and, by and with the 
advice and consent of the senate (a majority of all the senators 
selected concurring by yeas and nays), appoint all officers, whose 
offices are established by this constitution, or which may be created 
by law, and whose appointment, or election, is not otherwise pro- 
vided for," 5 it was held, by the supreme court of Illinois, that it 
was competent for the legislature to create an office and provide 
for the appointment of the officer, without the assent of the senate. 6 

1 United States v. Le Baron, 19 How. 4 Barton v. Kalloch, 56 Cal. 95. 
73. 5 Const 111. 1870, art. 5, s. 10. 

2 Const. N. C. art. 3, s. 10. 6 Wilcox v. People, 90 111. 186. 

3 State v. Stanley, 66 N. C. 59. 



589 

Where the state constitution provides that certain officers shall be 
appointed by the governor, by and with the advice and consent of 
the senate, and that, when an office "becomes vacant," 1 the gov- 
ernor shall have power to fill it, unless otherwise provided by law, 
it is competent for the legislature to confer upon the governor 
the power to fill an original vacancy, by his own appointment, 
during a recess of the senate, although such ofBce does not " be- 
come vacant," in the sens'e of the constitution. 2 

§ 703. Under a statute providing that the governor shall appoint 
certain officers, and shall, "in like manner, at the expiration of 
their respective terms, appoint and commission their successors," 
an appointment, made on the last day of the term, is valid, even 
though the term include the whole of that day. The words of 
such a statute do not designate the exact moment of the appoint- 
ment. 3 Under the constitution of Mississippi, which provides 
that chancellors and judges of the circuit court " shall be appointed, 
by the governor, with the advice and consent of the senate," 4 the 
governor has no power to appoint a chancellor, or circuit judge, 
for a full term, upon the expiration of the preceding term, during 
a recess of the senate. Such an appointment must either be sent 
to the senate, during the session preceding the expiration of the 
term, or deferred until the next session of the senate succeeding the 
vacancy. If otherwise made it will be void. 5 

§ 704. Whether the concurrence of any other authority shall be 
essential to a valid executive appointment, to fill a vacancy, depends 
on the constitution and laws. The constitution of the United 
States subjects the general power of executive appointment to the 
approval of the senate. But it is provided that " the president 
shall have- power to fill up all vacancies that may happen during 
the recess of the senate, by granting commissions which shall 
expire at the end of their next session." Vacancies to be so filled 
by executive appointment are not original vacancies, but such as 
occur by resignation, removal, promotion, or death. 6 An office 
created by law, but not filled, during the session of the senate, 
cannot be, subsequently, filled by executive appointment, because 

1 Const. Ga. art. 4, s. 2. 5 Christian v. Gibbs, 53 Miss. 314; 

2 Gormly v. Taylor, 44 Ga. 96. Brady v. Howe, 50 id. 607. 

3 People v. Blanding, 63 Cal. 333. 6 Story Const, s 1559; Sergt. Const. 

4 Const. Miss. art. 6, ss. 11, 17. Law, 373. 



590 

the vacancy does not happen during the recess of the senate. 1 
Where it is provided, by statute, that an officer " shall hold his 
office for two years, and until his successor is appointed," and 
that, if any vacancy shall occur in an office, " such vacancy shall 
be filled, for the unexpired term, by appointment of the governor," 2 
the governor is not empowered to appoint, at the expiration of an 
officer's term of two years, but only to fill a vacancy occurring 
before the expiration of his term. It is a vacancy in his term, and 
not a subsequent vacancy in the office, which the statute authorizes 
the governor to fill by appointment. Power to appoint for the 
full term being vested in the legislature, the governor has no right 
to exercise it. The state constitution contained the following 
clauses : "In the event of a vacancy, in the office of a justice of 
the peace, the governor shall appoint a person to serve as justice 
of the peace, until the next regular election of said officers." 3 " The 
governor may * remove, for incompetency, or misconduct, 
all civil officers who receive appointments from the executive for 
a term of years." 4 It was held, by the supreme court of Mary- 
land, that the appointee of the governor, to a vacancy in the office 
of justice of the peace, held until the next regular election of 
justices of the peace ; and that the appointment was to be made 
by the governor alone, without the confirmation of the senate ; and 
also that his power of removal did not extend to justices of the 
peace. 5 

§ 705. When the statute declares that " any vacancy in the office 
of district clerk, collector, or librarian, may be supplied by appoint- 
ment, under the hands of the trustees of the district, or a majority 
of them," 6 the appointment must be made in writing ; an appoint- 
ment by parol is illegal. But a parol appointment, of a collector, 
followed by the due execution and approval of an official bond, 
and a delivery of a tax warrant to the collector, will constitute him 
an officer de facto, whose title cannot be questioned collaterally, but 
only on quo warranto, or in proceedings to which he is a party. 
The trustee conferring the illegal appointment will be liable for 
the acts of the collector. 7 A private law of Illinois empowered 
the governor to appoint seven park commissioners, and to fill all 

. 'Sergt. Const. Law, 373. 4 Const. Md. 1851, art. 2, s. 15. 

2 Stat. Cal. 1851-3, p. 922, sec. 5; p. 5 Cantwellfl. Owens, 14 Md. 215. 

924, sec. 12. 6 Stat. N. Y. 1864, p. 1248, s. 32. 

3 Const. Md. 1851, art. 4, s. 19. 7 Hamlin v. Dingman, 41 How. Pr. 132. 



591 

vacancies occurring in the board. It authorized the removal of 
these commissioners, by the circuit court, and contained the fol- 
lowing clause : " If the said court shall remove any of such com- 
missioners from office, for any such cause, before the expiration 
of his or their term of office, the clerk of said court shall certify 
to the governor of the state of Illinois, under the seal of the court, 
a copy of the final judgment of removal. The president and 
secretary of the board shall certify to the governor all other 
vacancies arising or occurring in the same after the organization 
thereof." 1 It was held that this statutory requirement, of notice 
of vacancies to the governor, was not a limitation upon his power 
to fill vacancies ; that it was directory, and while it prescribed a 
certain mode of informing the 'governor of vacancies, it did not 
interdict any other mode of information. 2 

§ 706. Where a vacancy occurs, upon the death of the chancellor, 
the governor of Tennessee has power to fill the vacancy, by appoint- 
ment, until the next biennial election, which shall be held more 
than thirty days after the occurrence of the vacancy. And if the 
facts warranting such an appointment exist, the appointment will 
be good, though the governor, in making it, act upon the erroneous 
assumption that he is filling a vacancy occasioned by the resigna- 
tion of a chancellor, who was only such de facto.* A constitutional 
provision that, " no county office, created by the legislature, shall 
be filled otherwise than by the people, or the county court," 4 does 
not invalidate the authority conferred, by statute, upon the 
governor to fill a vacancy in the office of county judge. That 
office is not a county office, in the sense of the constitution. And 
while the prohibition excludes appointments by the governor to 
full terms of county offices, it does not exclude appointments to 
fill vacancies. 5 

§ 707. Under a constitution declaring that " ho bill shall contain 
more than one subject, which shall be clearly expressed in its title," 6 
a provision, in an act entitled " an act to amend and revise chapter 
2, title 2, of the general statutes of Missouri, concerning popular 
elections,'" 7 authorizing the governor to fill vacancies, in elective 
offices, is germane to the general subject, and is valid. 8 

1 Private Stat. 111. 1869, vol. 1, p. 351. 5 State v. Glenn, 7 Heisk. 472. 

2 Holden v. People, 90 111. 434. 6 Const. Mo. art. 4, s. 28. 

3 Gold v. Fite, 2 J. Baxt. 237. 7 Rev. Stat. Mo. 1879, s. 5527. 

4 Const. Tenn. 1870, art. 6, s. 17. 8 State v. Mead, 71 Mo. 266. 



CHAPTER XXXII. 

EEMOVAL OF PUBLIC OFFICERS. 







Secs. 




Secs. 


1. 


By whom removable . 


. 708-714 


4. Mode of removal 


. 720 


2. 


"What officers removable 


. 715,716 


5. Revisory power . 


. 721 


3. 


Grounds of removal . 


. 717-719 







§ 708. An officer, appointed to hold during good behavior, cannot 
be removed, by the executive, on the ground of misbehavior, but is 
entitled to a trial before a competent judicial tribunal. 1 When 
certain police commissioners of Jersey City had been convicted, 
upon indictment, of conspiracy to defraud the city, and the governor 
undertook to declare their offices vacant, and appoint their suc- 
cessors, it was held that the power to remove an officer, for 
malfeasance, was a judicial power, to be exercised, not by the 
executive department of the government, but by the court of 
impeachments. 2 When the constitution designates the offences 
for which certain public officers may be removed from office, the 
legislature has no power to prescribe removal from office as a 
penalty for offences not so designated. Nor can it, by declaring 
that a particular offence, which is not one of a class of offences 
for which officers may be removed, shall be " deemed " one of that 
class, make it such, and authorize the removal of the officer, upon 
conviction of such offence. 3 Where the constitution declares that 
" when the duration of any office is not provided for, by this con- 
stitution, it may be declared by law, and, if not so declared, it 
shall be held during the pleasure of the authority making the 
appointment," 4 and the duration of the office is not limited bylaw 
the power of removal, conferred by the constitution, cannot be lim- 
ited by statute ; a statute providing that an officer may be removed 
in a certain mode, or for a certain cause, will not restrict the power 
of removal to the mode, or cause, so indicated. The only way in 
which the power of removal can be limited, under such a constitu- 
tion, is by a legislative provision first fixing the term of office, and 

1 Page v. Hardin, 8 B. Mon. 648. 3 Commonwealth v. Williams, 79 Ky. 

2 State v. Pritchard, 36 N. J. L. 101. 42. 

* Const. Cal. 1850, art. 11, s. 7. 

592 



593 

then prescribing, if necessary, the mode in which the officer may 
be removed, during the term. 1 

§ 709. Under a statute declaring that " all officers appointed by 
the governor, with the consent of the senate, except the chancellor, 
the justices of the supreme court, and the circuit judges, may be 
removed by the senate, on the recommendation of the governor," 2 
the removal of an officer, appointed by the governor and senate, 
can only be effected through the direct action of the senate, upon 
an express recommendation of removal by the governor; and an 
allegation, on an information in the nature of a quo warranto, that 
the governor, by and with the advice and consent of the senate, 
appointed another, in the place of such officer, is not equivalent to 
an averment of his removal. 3 Under a statute authorizing the gov- 
ernor to appoint an officer, who shall hold his office " until the next 
general election in this state, or until otherwise provided by law," 4 
an appointee acquires a vested right to the office, and, in the absence 
of statutory authority therefor, cannot be removed, except for cause 
amounting to a forfeiture. The principle, that the power of removal 
is incident to the power of appointment, is applicable only to those 
cases where the office is held at the pleasure of the appointing 
power and the tenure is not fixed by law. 5 

§ 710. Under a statute empowering the township school directors 
" to remove from office, upon satisfactory proof, after at least five 
days' notice to the party implicated, any district officer, or school 
inspector, who shall have illegally used, or disposed of, any of the 
public moneys entrusted to his charge, or who shall persistently 
and without sufficient cause refuse, or neglect, to discharge any 
one of the duties of his office," 6 the trustees are exclusive judges 
of the facts on which they are authorized to remove a school 
director ; and their proceedings can only be reviewed on questions 
of law, by the circuit and supreme courts. 7 The county supervisors 
were authorized, by statute, to remove officers appointed by them, 
when they were satisfied, on charges and evidence, that such officers 

1 People v. Hill, 7 Cal. 97. 4 Laws Tex. 1870, 17. 

2 Kev. Stat. N. Y. 1836, p. 113, s. 44. 5 Collins v. Tracy, 36 Tex. 546; Hen- 

3 People v. Carrique, 2 Hill, 93. See nen's case, 13 Pet. 256 ; Keenan v. Perry, 

Pepis' case, 1 Vent. 342 ; Bowerbank v. 24 Tex. 253. 

Morris, Wall. 119; Hennen's case, 13 6 Comp. L. Mich. s. 3695. 

Pet. 225 ; Johnston v. Wilson, 2 N. H. 7 Hamtramck v. Holihan, 46 Mich. 127. 

202. 

38 



594 

were guilty of official misconduct, or of habitual, or wilful, neglect 
of duty ; but it was provided as follows : " No such officer shall 
be removed, for such misconduct, or neglect, unless charges thereof 
shall have been preferred to said board of supervisors, or the 
chairman thereof, and notice of the hearing, with a copy of the 
charges, delivered to such officer, and a full opportunity given him 
to be heard in his defence." 1 It was held that, as to time and 
notice of hearing, the board did not act as an ordinary court, but 
as a public board, authorized to use their own time and methods, 
subject only to the condition that no one should be removed with- 
out charges and reasonable notice, nor without a full opportunity 
to be heard ; and a service of a copy of the charges and of notice 
of the meeting to be held for their investigation, eleven days before 
the time fixed for such meeting, was held to be sufficient, although 
made on the authority of two of the three supervisors without a 
meeting of the board. 2 

§ 711. The power to appoint to an office, when the term and 
tenure are not defined, necessarily carries with it the power of 
removal. 3 In the absence of all constitutional provision, and 
statutory regulation, it would seem to be a sound and necessary 
rule to consider the power of removal as incident to the power 
of appointment. This power of removal was a subject, upon 
which there was a wide diversity of opinion, in the early his- 
tory of the government. The great question was whether offi- 
cers, appointed by the president, with the concurrence of the 
senate, could be removed by the president, without the con- 
currence of the senate. The power of the president and senate, 
by joint action, to remove officers appointed by the president, with 
the concurrence of the senate, whose tenure of office is not fixed 
by the constitution, has never been questioned. This has been, 
in effect, a full recognition of the principle that the power of 
removal was incident to the power of appointment. But the 
practical construction of the constitution, adopted, at an early 
day, by the executive department of the government, vested this 

l 2 Stat. Mich. 1877, c. 165, s. 2. beer v. Mayor, 4 Sandf. S. C. R. 109 ; 

2 Gager v. Supervisors, 47 Mich. 167. Williams v. Boughaer, 6 Coldw. (Term.) 

3 People v. Fire Commissioners, 73 N. 486; Newsom v. Cocke, 44 Miss. 352; 
Y. 437. See also Hennen's case, 13 Pet. Collins v. Tracy, 36 Tex. 546. 

230 ; People v. Mayor, 5 Barb. 43 ; Laim- 



595 

power of removal in the president alone. And such would appear 
to have been the legislative construction of the constitution, for, 
in the three acts of congress organizing the state, war, and treas- 
ury departments, in 1789, provision is made for the appoint- 
ment of officers, to take charge of the official records, books, and 
papers, whenever the respective secretaries " shall be removed 
from office by the president." 1 In the opinion of the supreme 
court of Louisiana, the doctrine that the power to remove is inci- 
dental to the power to appoint does not apply to governors of 
states. Their power of removal is held to be limited to the par- 
ticular cases provided for by statutory enactments. 2 

§ 712. But in 1867 congress, adopting a different construction 
of the constitution, enacted as follows : " Every person, holding any 
civil office, to which he has been, or may hereafter be, appointed, by 
and with the advice and consent of the senate, and who shall have 
become duly qualified to act therein, shall be entitled to hold such 
office, during the term for which he was appointed, unless sooner 
removed, by and with the advice and consent of the senate, or by 
the appointment, with the like advice and consent, of a successor 
in his place, except as herein otherwise provided." 3 " During any 
recess of the senate, the president is authorized, in his discretion, 
to suspend any civil officer, appointed'by and with the advice and 
consent of the senate, except judges of the courts of the United 
States, until the end of the next session of the senate, and to 
designate some suitable person, subject to be removed, in his 
discretion, by the designation of another, to perform the duties of 
such suspended officer in the meantime ; and the person, so 
designated, shall take the oath and give the bond required, by 
law, to be taken and given, by the suspended officer, and shall, 
during the time he performs the duties of such officer, be entitled 
to the salary and emoluments of the office, no part of which shall 
belong to the officer suspended. The president shall within thirty 
days after the commencement of each session of the senate, except 
for any office which, in his opinion, ought not to be filled, nominate 
persons to fill all vacancies in office, which existed at the meeting 
of the senate, whether temporarily filled, or not, and also in the 
place of all officers suspended ; and, if the senate, during such 

1 1 U. S. Stat. 28, 49, 65. 3 Rev. Stat. s. 1767. 

2 Dubuc v. Voss, 19 La. An. 210. 



596 

session, shall refuse to advise and consent to an appointment, in 
the place of any suspended officer, then, and not otherwise, the 
president shall nominate another person, as soon as practicable, 
to the same session of the senate for the office." 1 

§ 713. A constitutional provision that " county judges, county 
attorneys, and clerks of the district and county courts, may be re- 
moved, by the judges of the district courts, for incompetency, official 
misconduct, habitual drunkenness, or other causes defined by law, 
upon the cause therefor being set forth in writing, and the find- 
ing of its truth, by a jury," 2 is operative, without the aid of 
legislation. 3 The legislature may authorize the governor to re- 
move incumbents of offices created by the legislature. 4 Under a 
constitution, declaring that " the governor shall have power to re- 
move any officer, whom he may appoint, in case of incompetency, 
neglect of duty, or malfeasance in office ; and he may declare his 
office vacant, and fill the same, as is herein provided in other cases 
of vacancy," 5 it was held that the governor's power of removal ex- 
tended to all officers lawfully appointed by him, whether with or 
without the concurrence of the senate ; and that the effect of this 
constitutional provision was to make the governor's power of 
removal co-extensive with his power of appointment ; that it ex- 
tended to officers appointed under special laws enacted before, as 
well as under, those enacted after the adoption of the constitution ; 
and that this clause of the constitution furnished a remedy which 
could be applied even to cases for which other specific remedies 
had been provided. 6 

§ 714. Under a constitution declaring that " the powers of the 
government of this state are divided into three distinct depart- 
ments, the legislative, executive, and judicial ; and no person, or 
collection of persons, being one of these departments, shall exer- 
cise any power properly belonging to either of the others, except 
as hereinafter expressly directed or permitted," 7 it was held 
to be competent for the legislature to confer upon the county 
commissioners the power to remove county treasurers, for mis- 
feasance, or malfeasance, in office, on the ground that the power 

J Kev. Stat, s.,1768. See 2 Story, 1537 4 Evans v. Populus, 22 La. An. 21. 

to 1544 ; 1 Kent, 289, 290. B Const. 111. 1870, art. 5, s. 12. 

2 Const. Tex. 1876, art. 5, s. 24. fi Wilcox v. People, 90 111. 186. 

3 Trigg v. State, 49 Tex. 645. 7 Const. 111. 1870, art. 3. 



597 

exercised was not judicial. 1 But, under a similar constitutional 
provision, it was held by the supreme court of New Jersey that 
the right to remove a state officer, for misbehavior in office, per- 
tained not to the executive, but to the judicial, branch of the 
government. 2 Under a constitution declaring that "the governor 
and all civil officers of the state shall be liable to impeachment, 
for any misdemeanor in office," 3 it is competent for the legislature 
to authorize the county commissioners to remove county treas- 
urers, who are not state officers. 4 The power of amotion pertains 
to the body at large in every corporation, unless it is expressly 
confined to a select part, by charter. 5 

§ 715. In the absence of constitutional, or statutory, provision 
to the contrary, the power of removal extends to all officers em- 
braced in the power of appointment. A constitutional provision 
that " county judges, county attorneys, clerks of the district and 
county courts, justices of the peace, constables, and other county 
officers, may be removed, by judges of the district court," for 
reasons therein specified, authorizes the removal only of officers 
who, having been elected, or appointed, have qualified according 
to law, and have been inducted into office. 6 Where the statute 
declares that " the mayor shall nominate, and, by and with the 
consent of the board of aldermen, appoint, the heads of depart- 
ments and all commissioners ;' n that " the heads of all departments, 
including those retained as above, and all other persons whose 
appointment is in this section provided for, may be removed by 
the mayor, for cause ;" 8 and the same statute, in a subsequent sec- 
tion, declares that " the mayor shall, from time to time, appoint 
and remove, at pleasure, two persons who, together with the 
president of the department of taxes and assessments, shall 
be commissioners of accounts," 9 the commissioners of accounts 
are removable at the pleasure of the mayor. 1 ° The power to re- 
move a receiver of the assets of an insolvent bank is not incident 
to the mere power to appoint such officer, but must be expressed, 
or implied, in the provision of the statute. 11 

1 Donahue v. County, 100 111. 94 ; Stern 6 Flatan v. State, 56 Tex. 93. 

v. People, 102 id. 540. 7 Stat. N. Y. 1873, c. 335, s. 25. 

2 State v. Pritchard, 36 N. J. 101. 8 lb. 

3 Const. 111. 1870, art. 5, s. 15. 9 Stat. N. Y. 1873, c. 335, s. 106. 

4 Donahue v. County, 100 111. 94. 10 People v. Mayor, 82 N. Y. 491. 

5 Bex v. Lyme Kegis, 1 Doug. 149. " State v. Claypool, 13 Ohio St. 14. 



598 

§ 716. In California the governor cannot remove a notary public 
before the expiration of his term. The constitutional provision, 
conferring the power to remove officers, whose terms are not fixed 
by the constitution, or the law, implies a denial of the power to 
remove those whose terms are so fixed. 1 A statutory provision, 
conferring upon a board of officers power to fill a vacancy, by ap- 
pointment, does not authorize them to create a vacancy, but does 
authorize them to decide, in the first instance, when a vacancy 
occurs. 2 Under a statute authorizing the municipal authorities 
to " remove any person appointed by them," 3 an appointment to 
an office, for a term of years, is not a contract between the city gov- 
ernment and the officer, that the former will pay, or that the latter 
will serve, during the term for which the appointment is made. 
Either party may determine the official relation. 4 A corporation 
cannot, by virtue of the power of amotion incident to its corpo- 
rate existence, and without a further express legislative grant of 
power, remove one of its officers, before the expiration of his term, 
.except for good cause shown, affecting his capacity, or fitness, for 
the office. 5 

§ 717. When the constitution has created an office and fixed 
its term, and declared upon what grounds and in what mode an 
incumbent may be removed, it is beyond the power of the legisla- 
ture to remove, or suspend, him from office, for any other reason, 
or in any other mode. 6 Power to remove for nonfeasance does 
not imply power to remove for misfeasance. 7 The power to re- 
move an officer " for cause " can only be exercised for just cause, 
and after the officer has had an opportunity for defence. 8 

§ 718. The constitutional right of the appointing power to re- 
move, at pleasure, is not abridged by an act providing for removal 
in a certain way, or for a certain cause. 9 When the state consti- 
tution gives the governor the power to remove, from office, any 

: People v. Jewett, 6 Cal. 291. son v. Chamber of Commerce, 29 Wis. 

2 Hedley v. Commissioners, 4 Blackf . 45. 

116. fi Brown v. Grover, 6 Bush (Ky.) 1 ; 

3 Laws N. J. 1855, 462, s. 38. Lowe v. Commonwealth, 3 Mete. (Ky.) 

4 Hoboken v. Gear, 3 Dutch. 265. 237. 

5 State V. Kuehn, 34 Wis. 229 : State 7 People v. Burnside, 3 Lans. (N. Y.)74. 
v. Common Council, 10 id. 254 ; State * State v. Haight, 39 N. J. 14. 

V. Chamber of Commerce, 20 id. 63 ; 9 People v. Hill, 7 Cal. 97. 

State v. McGarry, 21 id. 496; Dickin- 



599 

officer appointed by him, for incompetency, neglect of duty, or 
malfeasance in office, but is silent as to the mode of its exercise, 
it is competent for the governor to determine whether any of the 
causes for removal exist, upon such evidence, and in such mode 
of procedure, as he may deem proper. 1 A statute empowering 
the county commissioners to remove county treasurers, for mis- 
feasance, or malfeasance in office, without a trial in a court of law, 
is not in conflict with a declaration, of the bill of rights, that no 
person shall be deprived of life, liberty, or property, without due 
process of law ; there is no property in a public office, within the 
meaning of such a declaration. 2 Where an officer is removable, 
at the pleasure of the governor, for certain specified causes, it is 
not essential to the validity, or finality, of the removal that the 
governor should designate the causes thereof. 3 The legislature 
having conferred upon a tribunal, or officer, authority to appoint to 
an office created by law, may authorize the removal of the incum- 
bent, without notice, or hearing. 4 

§ 719. Under a constitution declaring that the governor shall 
have power " to remove from office, for gross neglect of duty, or 
for corrupt conduct in office, or any other misfeasance, or mal- 
feasance therein, either of the following state officers, * and to 
appoint a successor for the remainder of their respective terms of 
office, and report the causes of such removal to the legislature, at 
its next session," 5 the governor's power of removal can only be 
exercised for the specific causes mentioned in the constitution, 
and upon charges specifying the particular acts, or neglect, relied 
on to make out the cause alleged ; and the respondent must have 
notice of these charges and specific allegations, and reasonable 
notice of a time and place w r hen and w r here he will have an oppor- 
tunity for a hearing thereon, upon which he may produce his 
proofs ; and the governor has judicial power to examine into and 
pass upon these charges. 6 Under a statute declaring that "no 
regular clerk, or head of bureau, shall be removed, until he has 
been informed of the cause of the proposed removal, and has been 
allowed an opportunity for explanation," 7 the power of removal 

1 Wilcox v. People, 90 111. 186. See People v. Fire Commissioners, 73 N. 

2 Donahue v. County, 100 id. 94. Y. 437. 

3 Keenan v. Perry, 24 Tex. 253. 5 Const. Mich. art. 12, s. 8. 

4 People ©. Whitlock, 92 N. Y. 191. 6 Dullam v. Willson, 53 Mich. 393. 

7 Stat. N. Y. 1873, c. 335, s. 28. 



600 

may not be exercised, unless some cause exists, such as neglect of 
duty, incapacity, or unfitness for the position. But, when charges 
and specifications, furnishing a sufficient cause for removal, and 
sufficiently distinct to apprise the officer of the grounds upon 
which the charges are based, are served upon him, with notice of 
the time and place at which his explanation may be made, and, at 
the time and place specified, an opportunity for explanation is 
afforded, the requirements of the statute are met ; it is not requisite 
that the charges and specifications should be drawn with the 
formal exactness of pleadings in a court of justice ; nor is the 
officer entitled to a regular trial. The head of the department, if 
the explanations be not satisfactory to him, may, in his discretion } 
remove the officer, without calling witnesses to substantiate the 
charges, or allowing testimony on the part of the officer ; he may 
exercise the power upon facts within his own knowledge, or upon 
information received from others. 1 

§ 720. The court of queen's bench will see that the statutory 
power of a corporation to remove its own officers is exercised in 
a lawful manner. 2 When a board has completely exercised its 
power of appointment, in a particular case, and the appointee is 
not removable, at the will of the board, a rescission of the appoint- 
ment will not affect the right to the office. 3 A new appointment 
to an office necessarily operates as a removal of the incumbent. 4 
An officer is not deprived of the power to perform the duties of 
his office, by removal, until notified of such removal. 5 A statute 
declaring that " no regular clerk, or head of bureau, shall be 
removed, until he has been informed of the cause of the proposed 
removal, and has been allowed an opportunity of making an expla- 
nation," 6 does not apply to the case where a regular clerk is 
discharged because there is no further need of his services, or 
because there are no funds for his compensation. 7 

§ 721. The power to remove an officer for cause is of a discretion- 
ary, or judicial, nature, and, unless by virtue of statutory provision, is 
not subject to examination, or review, by any tribunal other than 
that in which the power is vested. 8 The grant of power to the 

1 People v. Thompson, 94 N. Y. 451. 5 Commonwealth t>. Slifer, 25Penn. St. 

2 Osgood v. Nelson, 5 L. K. H. L. Cas. 23. 

636. 6 Stat. N. Y. 1873, c. 335, s. 28. 

3 Haight v. Love, 39 N. J. 14. 7 Langdon v. Mayor, 92 N. Y. 427. 

4 Keenan v. Perry, 24 Tex. 253. 'People v. Stout, 11 Abb. (N. Y.) Pr. 

17. 



601 

executive to remove an officer for a specified cause implies au- 
thority to judge of the existence of that cause. The power, being 
vested exclusively in executive discretion, cannot be controlled, in 
its exercise, by any other branch of the government. 1 

1 State v. Doherty, 25 La. An. 119. 



CHAPTER XXXIII. 

ORGANIZATION OF LEGISLATIVE BODIES. 



Secs. Secs. 

3. Organization of state legisla- 
tures 730 

4. Credentials . . . 731-738 

5. Oath- . . ■ . . . . 739,740 

6. Quorum . . . . 741-748 



1 . Enrollment of representatives and 

organization of the house of 
representatives of the United 
States .... 722-727 

2. Enrollment of members of the 

house of commons, of the 
United Kingdom . . 728,729 

§ 722. The fifth section of the first article of the constitution 
is in these words : " Each house shall be the judge of the elec- 
tions, returns, and qualifications of its own members, and a 
majority of each shall constitute a quorum to do business ; but a 
smaller number may adjourn, from day to day, and may be author- 
ized to compel the attendance of absent members, in such manner, 
and under such penalties, as each house may provide. Each 
house may determine the rules of its proceedings, punish its mem- 
bers for disorderly behavior, and, with the concurrence of two- 
thirds, expel a member." The last clause of the second section of 
the same article is in the following words : " The house of repre- 
sentatives shall choose their speaker and other officers; and shall 
have the sole power of impeachment." On the sixteenth of March, 
1860, the house adopted the following rule : " There shall be 
elected, at the commencement of each congress, to continue in office 
until their successors are appointed, a clerk, sergeant-at-arms, 
doorkeeper, and postmaster ; each of whom shall take an oath for 
the true and faithful discharge of the duties of his office, to the 
best of his knowledge and abilities, and to keep the secrets of the 
house." On the nineteenth of March, 1860, the following rules 
were adopted : " All elections of officers of the house, including the 
speaker, shall be conducted in accordance with these rules, so far 
as the same are applicable ; and, pending the election of a speaker, 
the clerk shall preserve order and decorum, and shall decide all 
questions of order that may arise, subject to appeal to the house. 
These rules shall be the rules of the house of representatives 

602 



603 

of the present and succeeding congresses, unless otherwise 
ordered." 

§ 723. The act of March 3, 1863, provides that, " before the 
first meeting of the next congress, and of every subsequent con- 
gress, the clerk of the next preceding house of representatives 
shall make a roll of the representatives elect, and place thereon 
the names of all persons, and of such persons only, whose creden- 
tials show that they were regularly elected in accordance with 
the laws of their states, respectively, or the laws of the United 
States." The amendatory act of February 21, 1867, substitutes 
the following provision : " That 'before the first meeting of the 
next congress, and of every subsequent congress, the clerk of the 
next preceding house of representatives shall make a roll of the 
representatives elect, and place thereon the names of all persons 
claiming seats, as representatives elect, from states which were 
represented in the next preceding congress, and of such persons 
only, and whose credentials show that they were regularly elected, 
in accordance with the laws of their states, respectively, or the laws 
of the United States." The evil against which congress sought to 
provide, in the acts of 1863 and 1867, was not a matter of mere 
form, or of faults, or inaccuracies, or omissions, in the phraseology 
of credentials of representatives. The object was not to prescribe 
new forms of credentials for any of the states, nor to discredit 
the forms which they, or any of them, had previously adopted 
and used. The danger provided against was the real and sub- 
stantial danger that mere intruders might, by means of fictitious 
or forged credentials, obtain places on the clerk's roll and partici- 
pate in the organization of the house. * 

1 The law of March 3, 1863, cited above, seventh congress. Charles H. Upton 

was enacted on the day preceding the took his seat in the house as a represent- 

expiration of the thirty-seventh con- ative of the seventh district of Virginia, 

gress. The reason for its enactment is at the extraordinary session, on the 

to be found in the remarkable experi- fourth day of July, 1861, and occupied 

ence of the house in cases of claims for his seat until evicted, by a vote of the 

seats preferred in each of the three ses- house, on the 27th day of February, 

sions of the thirty-seventh congress. 1862. The chairman of the committee 

These cases grew out of the anomalous of elections stated his case in the f ol- 

condition of the states then in rebellion. lowing words : 

Ten claimants of seats in the house, ti m, •. - • ■. i, -.i. 

' " The sitting member came here with- 

from states in rebellion, were excluded out the certificate of the governor, with- 
during the three sessions of the thirty- out a certificate of a justice of the peace, 



604: 



§ 724. The constitutional provisions, parliamentary rules, and 
statutory enactments cited above present a question which may 



and without the certificate of any man 
touching his right to his seat. He came 
here and induced the clerk of the house 
to put his name upon the list of members. 
He was sworn in without so much as a vote 
of the house upon the question. That is 
the prima facie case here, and he had no 
other prima facie case. It was the in- 
fluence he exerted over the clerk of the 
house to induce him to put his name 
upon the printed catalogue which was 
made up beforehand, which caused him 
to be sworn in here without the slightest 
evidence in the world, or any certificate 
of election considered as such by any 
sort of law." 47 Cong. Globe, 1007. 

The cases of J. B. McCloud and W. W. 
Wing, who claimed seats in the thirty- 
seventh congress, as representatives of 
the second district of Virginia, are thus 
stated by the chairman of the committee 
of elections : 

"This election was held under the 
most peculiar circumstances. It was 
difficult for the committee to trace 
it. If I may be allowed the expression, 
it is a compound fracture. It was held 
under the proclamations of two military 
governors and one civil governor. The 
first is the proclamation of Major Gen- 
eral Dix, of the eighth of December, 
1862, calling for an election on the fol- 
lowing twenty-second of December. It 
is impossible for the committee to ascer- 
tain under what authority General Dix 
assumed to call this election. On the 
twelfth of December, General Viele, 
styling himself the military governor 
of Norfolk, issued his proclamation. 
He addressed his proclamation to the 
voters of only four counties. It was 
proposed to hold that election in those 
counties, and it was called for the twenty- 
second of December. On the Saturday 
before the twenty-second of December, 
which was on Monday, Adjutant-Gen- 
eral Samuels, of Virginia, residing at 
Wheeling, arrived, bringing writs of elec- 
tion from the civil governor of the state 
of Virginia, bearing date the twelfth day 
of December, and calling for an election 
to be held on the following twenty- 
seventh of December. Learning that he 
had arrived on the eve of an election, 
the writs of election from the civil gov- 
ernor of Virginia were altered from the 



twenty-seventh to the twenty-second of 
December,' so as to conform to the proc- 
lamations of General Viele and General 
Dix. * The proclamation of General 
Dix and that of General Viele, as well as 
the writs of Governor Peirpont, were in 
conflict with the law of Virginia. Nei- 
ther of them, in any essential particular, 
conformed to the requirements of the 
law of Virginia. Each of them seemed 
to have been entirely above any embar- 
rassment of legal enactment of the state 
of Virginia. That election was held in 
a disregard of the laws of Virginia that 
was truly sublime." * Cong. Globe, 
Feb. 4, 1863. 

The case of Charles Henry Foster, 
who claimed a seat as representative of 
the first and second districts of North 
Carolina, is thus stated in the report of 
the committee presented by the chair- 
man : 

"As all the evidence in support of 
this claim consists of the aforesaid 
memorial, which is printed in mis- 
cellaneous document number 53, a copy 
of what purports to be a memorial 
of thirty citizens of Carteret county, 
' ratifying and affirming ' the election of 
the claimant, a copy of a resolve, in 
favor of the same claim, purporting to 
have been adopted by citizens of Craven 
county, which latter papers accompany 
this report, and what was said by Mr. 
Foster himself, in support of his own 
claim, the committee deemed it best that 
the house should have the benefit of the 
latter also. * This is the fourth time 
that Mr. Foster has claimed to have 
been elected a representative to the 
thirty-seventh congress from the state of 
North Carolina ; twice from the first 
and twice from the second district. On 
the eighteenth day of December last, 
the house adopted, without division, the 
following resolution : ' Resolved, That 
Charles Henry Foster is not entitled to 
a seat in this house as a representative 
in the thirty-seventh congress, either 
from the first or from the second district 
of North Carolina.' The present claim 
is based entirely upon proceedings which 
have transpired since that date. Those 
proceedings consist of what purports to 
be a poll-list of eighty-one votes cast for 
Mr. Foster, at Chickamacomico precinct, 



605 

be of very grave practical importance. It is whether these rules 
and acts are of constitutional obligation upon the house, or are 
merely regulations which the house may, at its discretion, adopt 
when convenient and reject when inconvenient. The act of 1867 
seems to embrace two substantive provisions. In the first place, 
it, in effect, prescribes, in part, the substance of the credentials, 
although it does not prescribe their form, or designate the officials 
who are to furnish them. This is a valid provision ; for the cre- 
dentials constitute the concluding part of the election proceedings 
which congress is empowered by the constitution to regulate. In 
the second place, the statute empowers the clerk of the preceding 
house to inscribe, on a roll, the names of those persons claiming 
seats in the house, as representatives from states represented in 
the preceding congress, whose credentials are, in substance, such 
as the statute prescribes, leaving the clerk, in the preparation of 
this roll, to judge, not only whether the credentials are, in sub- 
stance, such as are prescribed, but also whether they are furnished 
by the proper officer. This provision is also constitutional, if its 
effects terminate with the preparation of the roll. For it is no 
violation of the constitutional provision, which makes the house 
the sole judge of the credentials (which are the returns) of its 
members, for a clerk of the preceding house to pass judgment 
thereon, if that judgment is to remain with the clerk, and is not 



on the sixteenth of February last, sup- 
ported by a copy of a paper purporting 
to be signed by thirty citizens of Car- 
teret county, 'ratifying and affirming' 
said election, and a copy of a resolution 
of like purport supposed to have been 
adopted by some citizens, how many it 
is not known, of Graven county. * 
This voting at Chickamacomico was 
without the slightest authority of law. 
No election had been called. No writ of 
election had been issued. There was no 
governor of the state, provisional, mili- 
tary, or any other character, but the 
rebel governor, to issue one. The memo- 
rial of thirty names, purporting to be of 
citizens of Carteret county, ' ratifying 
and approving of ' such an election, was 
of an anomalous character. The paper 
presented to the house was a copy. The 
committee called for the original, and, 
when produced, it was found to be, 
except the names, in the handwriting of 
the claimant himself, to be without date, 



and the names themselves to be written, 
many of them, in one handwriting, 
though not that of the claimant. * The 
original of the resolve, purporting to 
have come from citizens of Craven 
county, the committee have never seen, 
and they are entirely ignorant of the 
number, character, or residence of the 
persons who adopted it." 1 Bart. 424. 

These statements disclose the real 
reason and object of the act of March 
third, 1863, passed on the day previous 
to the expiration of the term of congress 
during which they were submitted to 
the house. The object was to guard 
against the possibility of the acquisition 
of seats in the house, by intruders, by 
the means and methods which had be- 
come familiar to the thirty - seventh 
congress. 



606 

to be in any way thrust upon the house. But if the object and 
effect of the statute, either standing alone or connected with the 
rules of the preceding house, were to encourage the clerk in any 
attempt to impose his judgment respecting the credentials, and his 
roll, framed in accordance therewith, upon the house, at its organi- 
zation, it would be unconstitutional and void, because, while con- 
gress has the power to prescribe the form and substance of the 
credentials, the house is the sole judge of the credentials, under 
the constitution, and congress is powerless to constitute any other 
tribunal, authority, or person, the judge thereof. The power to 
judge of the elections, returns, and qualifications of its members, 
to determine its own rules, and to choose its own officers, which 
is conferred by the constitution upon the house, is, in its character, 
absolute and exclusive. No other body, tribunal, or authority can, 
in any case, exercise that power, or any part of it. It is clear that 
the rules under consideration are obligatory upon no house until 
adopted by that house. Such was the decision of the speaker of 
the house, in the forty-fourth congress, and his decision was sus- 
tained by the house. 1 It is clear, too, that the attempt to make 
rules of one house binding upon a succeeding house, unless other- 
wise ordered, is void, because in conflict with the constitutional 
provision which vests in each house the power to make its own 
rules. 2 

§ 725. It will be observed that the acts of March 3, 1863, and 
February 21, 1867, only purport to authorize " the clerk of the 
next preceding house of representatives " to make a roll of the 
representatives elect, and place upon it the names of certain 
persons therein indicated ; that it does not purport to empower 
the ex-clerk to appear, in an official capacity or otherwise, at the 
organization of the new house, or to give his roll any effect in 
such organization. Of course it was competent for congress to 
authorize any citizen, whether he had or had not ever been a clerk 
of the house of representatives, to make up such a roll. But if 

1 Cong. Rec. Dec. 6, 1875. of commons, as much as if it were an 

2 Under the system of standing orders, order of that house itself. This system 
which is in use in England, it is in the does not prevail in this country. It is 
power of the house of commons, at any not in the power of a legislative assembly 
time, by simply declaring one of its here to make any rules to bind its succes- 
orders a standing order, to make it bind- sors. Cushing, s. 248. 

ing on, or in force in, a succeeding house 



607 

there was any attempt, in this act, to authorize the ex-clerk to 
appear, as a functionary, at the organization of the new house, or 
to give his roll any constitutional place in that proceeding, or to 
furnish any rules or regulations for the occasion, that attempt was 
unconstitutional and void. The power to judge of the elections 
and returns of its members, the power to choose its own officers, 
and the power to make its own rules, which are vested by the con- 
stitution exclusively in the house, would all have been overthrown 
by such legislation. The house of representatives, in existence 
in 1863, had no constitutional right to vote for such an act. That 
house had no right to join with the senate and the president in an 
attempt to impose upon any subsequent house rules, or officers, 
not of its own adoption or choice. Nor had the senate any con- 
stitutional right to undertake to impose such rules or officers, 
upon any house of representatives whatever, whether in existence 
at the time of the passage of the act, or subsequently to be organized. 
Nor had the president any right, by the approval or disapproval of 
a bill, to participate in the establishment of any rules for any 
house of representatives, whether then in existence, or thereafter 
to be organized. 

§ 726. The rule which authorizes the ex-clerk of the previous 
house to preside at the organization of a new house is void, as a 
rule, for the reason that it makes him, in the first instance, the 
judge of the returns of the representatives, and also for the reason 
that the constitution confers upon each house the exclusive power 
to choose its own officers. The house of representatives is not, 
like the senate, a permanent body. One house can neither choose 
officers for its successor, nor prolong the official terms of its own 
officers, after the termination of its own existence. Before the 
enactment of the law of March 3, 1863, it had become the usage 
for the clerk of the preceding house to prepare and present, at 
the organization of the house, a list of the representatives elect. 
This practice rested on no statute or rule, but originated in the 
convenience of the house. The term of the representatives elect 
commenced on the fourth of March ; but the first session did not 
commence until the following December. Meantime there was 
no organized house of representatives. Most of the credentials of 
members elect reached the seat of government before March 4, the 
expiration of the term of the outgoing house, and came into the 



608 

custody of its clerk. And after the fourth of March there was no 
other person who could so conveniently as the clerk retain the 
custody of the credentials, or receive and keep those subsequently 
transmitted, or prepare a roll of the representatives elect. Besides 
it was claimed that the house had, by the rule adopted March 16, 
1860, prolonged the clerk's official term beyond that of the house 
itself. So it became the practice for the clerk to appear, at the 
organization of the house, with his printed list, on which he had 
inscribed the names furnished by the credentials. In this he acted 
wholly by permission and under the control of the house itself. 
The power of the house over its own organization was absolute, 
by virtue of the constitutional provisions which have been cited. 
In this the house was above all rules of preceding houses. It 
stood upon the constitution itself. Nor could any act of congress, 
in the slightest degree, abridge, or modify, this power of the house. 
If the services of the clerk became inconvenient or offensive, they 
could be dispensed with, as they were in the organization of the 
house, in the twenty-sixth congress, when the clerk refused to 
enroll the names of certain representatives from the state of New 
Jersey, and was displaced by the election of ex-president John 
Quincy Adams, as temporary chairman, on a resolution introduced 
and put to vote by Mr. Rhett, of South Carolina. 1 

§ 727. The constitutional rights and powers of the representa- 
tives, assembled for the organization of the house, have not been 
changed by the acts of 1863 and 1867, any more than by the par- 
liamentary rules of 1860. It is still within the power of the house, 
at its discretion, to set aside the clerk of the preceding house, and 

1 During certain proceedings in the would be better to permit the clerk to 

contested election case of Letcher v. proceed as usual. Until the roll-call was 

Moore, in 1833 (C. & H. 715), which completed they could not know who was 

were had while the ex-clerk was reading entitled to vote for a chairman. Mr. 

his roll of members elect, before the or- Foster suggested that the clerk did not 

ganization of the house, Mr. Foster, of act as chairman; that he only read a list 

Georgia, proposed the appointment of a which he had himself prepared, on what 

chairman, to give order to the proceed- ground, or by what authority, he did not 

ings. A member inquired whether a know ; that the inscription of the name 

quorum of the house had answered to of a particular person, on that list, did 

their names. Mr. Foster urged the ex- not make him a member of the house of 

pediency of choosing a chairman. The representatives. After further discussion 

house was competent to do this, he the parties, by consent, withdrew their 

thought, whether a quorum had answer- contest until the election of the speaker. 
ed or not. Mr. Ellsworth thought it 



609 

take the preparation of the roll and the organization of the house 
wholly into its own hands. Every new house has the constitu- 
tional right to organize itself, without the intervention of strangers, 
exactly as the first house did, and as many succeeding houses also 
did. And while these rules and statutory provisions are without 
obligatory force, until adopted by the new house, they will not be 
free from danger unless rigidly confined to their true uses as rules 
subject, not superior, to the control of the house. Their evil 
effects will appear, in the most aggravated form, at the organiza- 
tion of a close house. When the party in power, in the house, has 
a large majority of the representatives, these rules and statutes 
become unimportant, because then the house can be easily organ- 
ized under the old practice. Certainly the difficulties involved in 
the constitutional plan in a close house, might be very great. 
These difficulties have been experienced once. They may or may 
not be experienced again, during the existence of our government. 
But if such an emergency shall again arise, it will be wiser and 
better to encounter and overcome again the embarrassments of 
that occasion, than to degrade the house of representatives, by 
the adoption of the doctrine that an ex-clerk can be the constitu- 
tional organizer of a new house. The submission of the American 
people to a house which should contrive to secure a fraudulent 
organization from an ex-clerk, in defiance of the ballots, the 
returns, and the constitution, could not fail to end, sooner or later, 
in evils incomparably more grievous than the worst that could 
result from immediate resistance. 1 

1 There are some points in republican it could be made by any constitutional 

governments at which, from the nature provision. It is probable that an honest 

of the case, no guaranties of the public organization of the house will be more 

safety can be found, except in the wis- effectually secured, under the plan of the 

dom, integrity, and patriotism of the existing constitution, by the ever present 

people and their agents. In such cases apprehension of the supreme peril in- 

the more palpable the peril the greater volved in a fraudulent organization, 

the security ; the more obvious the than by any precise method, entrusted, 

hazards of invasions of the rights of for execution, to a clerk, or other official, 

the people the surer the guaranties whose dishonesty would have the sanc- 

against such invasions. It is probable tion and support of the law. It is proba- 

that the security of the people of the bly wiser to leave the house to organize 

United States, against the great calamity itself, as best it can, on the present plan, 

of a self- constituted house of representa- under the eyes of the people, than to 

tives, is made greater by the hazard of entrust to any man the power to organize 

civil war, involved in such a crime, than the body. 

39 



610 

§ 728. In England, the writ for the election of a member of 
parliament is issued, by the crown, to the sheriff. The sheriff is 
required to make his return of the writ to the clerk of the crown 
in chancery. This return is the member's certificate of election. 
It is the only return known to the English law. It is sent, by the 
clerk of the crown in chancery, to the clerk of the house of com- 
mons. And, when a new parliament is elected, the book sent, by 
the clerk of the crown, to the clerk of the house, containing all 
the returns of members elect, constitutes, under the laAv of 
England, the roll of those who are entitled to take seats and be 
sworn in the house. ■ The clerk of the new house of commons is 
not an ex-clerk of a former house ; but he is, at the time, the actual 
clerk of the house. He is not elected by the house, as in the 
United States, but is appointed by the crown, by letters-patent. 1 
He holds office, not during the term of parliament, as here, but 
for life ; and when he appears, at the organization of the house of 
commons, with the roll of members transmitted to him, by the 
clerk of the crown in chancery, he appears, not scantily clothed 
in the authority conferred by an unconstitutional rule of a former 
house, or by an unconstitutional statute, but invested with official 
authority, under the constitution and laws of England. He does 
not hold, as a tenant at sufferance, a place where the constitution 
gives him no foothold, but he stands where the law and the con- 
stitution authorize and require him to stand. And he brings 
with him, not credentials framed according to the varying statutes 
of thirty-eight local jurisdictions, but credentials all molded in 
one form, under positive provisions of constitutional statutes, 

If, however, the constitutional plan is tion, at any time after the fourth of 

to be abandoned, it is evident that the March ; to attend, at the meeting of the 

power to organize the house can be more house, and administer, the oath to all 

safely entrusted, by an amendment members of the house, not previously 

of the federal constitution, to the chief sworn; and to preside, under the rules 

justice of the United States, than to an of the preceding house, until the election 

ex-clerk of a former house of represent- of the officers of the house. It might re- 

atives. Such a constitutional amend- quire all contests of 'prima facie titles to 

ment might require the credentials to be seats to be promptly made, before the 

sent to the chief justice, immediately chief justice (or the supreme court), and 

after the election, and might require him decided before the fourth of March, 

to prepare and proclaim the roll of the leaving only contests on the merits for 

house, before the fourth of March fol- the determination of the house, 

lowing ; to administer the oath of office 1 Ante § 673. 
to the representatives elect, on applica- 



611 

placed by the crown in his hands, according to law, as the roll of 
the house. 

§ 729. The difference between the powers of the British house of 
commons, so far as the returns of its members are concerned, and 
the corresponding powers of the house of representatives of the 
United States is practically very great. In England, the commons 
have power to judge whether the return is, or is not, the return 
prescribed by law, whether it does, or does not, conform to the 
statutory, which is also the constitutional, standard. But they 
cannot accept a return not prescribed by law. The power of 
the house of representatives of the United States to judge of the 
returns of its members is not limited to a determination of the 
question whether the} 7 do, or do not, conform to a particular stan- 
dard. There is no uniform standard. The states may fail to make 
adequate provision for the credentials of their representatives. No 
federal statute prescribes the form of a return which shall entitle 
a claimant to admission to a seat. A federal or state law prescribing 
such a return would probably be valid, under the constitutional 
provision which empowers congress and the state legislatures to 
regulate the time, place, and manner of choosing representatives ; 
but, in the absence of statutory provisions of that kind, the house 
must itself judge whether the return satisfies the general require- 
ments of the constitution and the law. 

§ 730. The enrollment of members of the respective houses of 
the several state legislatures, and the organization of those houses, 
is regulated by the state constitutions, subject to the provisions of 
the constitution of the United States. 

§ 731. Undoubtedly the counting or canvassing of the votes is 
a part of the election proceeding for which the state legislatures 
and congress are authorized to provide. For although the official 
count or canvass is not absolutely indispensable to a valid elec- 
tion, although a failure to make such count or canvass, either by 
the district board, or by the county boards, or by the pre- 
cinct boards, would not be fatal, provided the vote actually 
cast could be otherwise properly proven, still the actual count or 
canvass, not only by the precinct boards, but also by the county 
and district boards, is so intimately connected with the election, 
that the right of the states and of congress to provide for them, 
under the fourth section of the first article of the constitution, 



612 

cannot be seriously questioned. It is very clear, however, that no 
certificate, or proclamation, except so far as it constitutes part 
and parcel of the count or canvass, is authorized by this, or by 
any other, section of the constitution. 

§ 732. The proclamations, or certificates, of governors of states 
have no special virtue, as credentials of representatives in con- 
gress, at the organization of the house. If the states have authority 
to prescribe the forms of the credentials of representatives in con- 
gress, or to designate the officers who shall issue them, they may 
impose the duty of issuing them as well upon any other officers as 
upon the governors. And the credentials will have precisely the same 
value in one case as the other. As a matter of fact, there have been 
not less than twenty -five forms in actual use, in the several states ; 
and the credentials have been issued by the governor, secretary of 
state, attorney-general, adjutant-general, state treasurer, comp- 
troller, or president of the state senate, or by several of these officers, 
acting jointly. Nor can the states, or even congress itself, of right, 
exercise any power affecting such credentials, beyond the mere regu- 
lation of the times, places, and manner of holding the elections. 
Beyond that, all their acts are valid only by permission of the house. 
For, by the constitution, the house is made " the judge of the elec- 
tions, returns, and qualifications of its own members ;" and neither 
congress nor the states can exercise any power whatever in the 
premises, except such as is conferred by article one, section four, 
of the constitution, in which it is provided that " the times, places, 
and manner of holding elections for senators and representatives 
shall be prescribed, in each state, by the legislature thereof ; but 
the congress may, at any time, by law, make, or alter, such regula- 
tions, except as to the places of choosing senators." The states, 
therefore, can provide for no credentials which do not pertain to 
the regulation of the manner of holding the election ; that is to 
say, which do not constitute a part of the election proceedings 
themselves. 

§ 733. The opinion that the house is not authorized to decide 
who shall hold a seat, pending a contest, except upon credentials 
bearing one uniform stamp, — that by virtue of some clause of the 
constitution, or some valid statute, or some parliamentary rule, or 
for some other reason, the house is bound, in such a case, to look 
only at some particular proclamation, certificate, or return, is 



613 

wholly erroneous. If the state law authorize the governor, or sec- 
retary of state, or any other officer, or any board of officers, to 
certify a district count or canvass, and such certificate be wanting 
or incomplete, the house may, for the purpose of deciding who 
shall occupy an uncontested, or, pending a contest, a contested, 
seat, use the certificates of the county boards, or of the precinct 
boards, or it may have recourse to any other evidence in its pos- 
session, which it may judge to be convenient and proper, in the 
particular case. In this also the house is above all statute law. 
It is the exclusive "judge of the elections, returns, and qualifica- 
tions of its own members," and no rules of evidence, imposed 
from without, can stand between it and the actual votes of the 
people, in the decision of claims, either to contested or uncontested 
seats. The question whether the house will, or will not, in the 
absence of satisfactory certificates of returning officers, resort to 
other evidence, in order to determine who shall be admitted at the 
organization to a seat, whether contested or uncontested, is not a 
question of constitutional power, or obligation, but wholly a ques- 
tion of expediency and propriety in the particular case, of which the 
house is sole judge. When the certificate of the district canvasser 
(whether governor, secretary of state, or other officer) is wanting, 
or is insufficient, and the certificates of the county returning officers 
are in the possession of the house, and are in substance and form 
sufficient, they are used. When these are wanting or insufficient, 
the house in like manner consults the certificates of the returning 
officers of the precincts. If the certificates present doubtful or 
complicated questions, of law or fact, the seat, whether contested 
or uncontested, ought not to be awarded without an investigation 
and report by the committee of elections. The proposition that 
it is better to have the seat occupied, even by an intruder, than 
to have the district temporarily unrepresented, is unsound. It is 
-subversive of the very fundamental principles of popular repre- 
sentation. No public interest can be subserved by awarding a 
seat, even temporarily, to a claimant chosen, not by the people, 
but by a fraudulent official in opposition to the will of the people. 
But if no questions of law or fact be raised by the certificates, or 
if questions of law being so raised be capable of prompt solution, 
and questions of fact raised by the certificates be also answered 
by the certificates, — in such case the house ought to permit the 



614 

seat, whether contested or uncontested, to be taken at its organi- 
zation and occupied, pending the contest, by the claimant whose 
right is thus established by the credentials. * 

§ 734. The word "credentials," as used in the statute, 2 is not 
a narrow, specific term, but is broad and generic. It is not re- 
stricted in its application to a document drawn up in any particular 
form of words, or executed by any particular functionary. It 
applies to all instruments which the house, in practice, accepts as 
the credentials of representatives, or delegates, whether founded 
on state or federal legislation, or on local usage ; whether limited 
to a single representative, or embracing an entire state delegation ; 
whether executed according to law by a governor, by a secretary 
of state, by a legislative officer, by a board of state canvassers, by 
a board of district canvassers, or by any other authority ; 
whether merely presenting a bare certificate of the election, or 
exhibiting also, in facts and figures, the votes cast for the several 
candidates ; whether consisting of one or of several documents. 

§ 735. The meaning of the clause, " show that they were regularly 
elected, in accordance with the laws of their states respectively, 
or the laws of the United States," as used in the acts of 1863 and 
1867 is clear. An express averment that the representatives were 
" regularly elected, in accordance with the laws of their states 
respectively, or the laws of the United States," made in the 
credentials, by the officers designated by the statute to issue them, 
will, of course, " show " that the representatives were so elected. 
But the same thing may be as well, or even better, shown by a 
statement of facts which themselves show that they were so elected. 

1 In the states of Massachusetts, Mary- sas and Missouri, but in a general cer- 
land, New Jersey, New York, and Penn- tificate including the whole delegation 
sylvania, the credentials have taken the in Wisconsin. In Kentucky separate 
form of general proclamations, or certifi- certificates have been issued, signed by 
cates, of the governor, embracing the the governor, secretary of state, and at- 
nairies of all the representatives elect. tomey-general. In South Carolina, sep- 
Separate certificates have been issued by arate certificates have been issued, signed 
the governors of Alabama, Illinois, Iowa, by the secretary of state, adjutant-gen- 
Louisiana, Maine, Michigan, Minnesota. eral, attorney-general, state treasurer, 
Ohio, Oregon, North Carolina, Rhode and comptroller-general. The creden- 
Island, Texas, and Vermont. In Kan- tials for the state of Nebraska have been 
sas, Missouri, and Wisconsin, the creden- signed by the president of the state 
tials have been issued by the secretary senate, 
of state, in separate certificates in Kan- 2 Rev. Stat. U. S. s. 31. 



615 

If the credentials should set forth facts showing that the election 
was not held according to law, an averment that it was so held 
would not make the credentials good. For example, suppose the 
credentials to show that the election was held in July, in a state 
in which the time for holding it is fixed in November, an averment 
that the election was held according to law would not save the 
credentials. The clerk would refer to the statute and reject them 
as false. The object and effect of the statute are to empower the 
clerk to prepare the original roll, and to indicate, for his guidance, 
in its preparation, the same principles which the house itself would 
observe in the admission of representatives at its organization ; to 
authorize the clerk to enroll the names of those whose credentials 
show, whether by specific averment or by statement of facts, that 
they were regularly elected according to law, and to exclude from 
the list the names of all others. These credentials are to be read, 
in the light of the constitution and of federal and state laws, and 
of all those facts of which courts take judicial notice. 

§ 736. If it had been essential to the validity of the credentials 
that they should contain explicit averments that the representa- 
tives were regularly elected in accordance with the laws of their 
states respectively, or the laws of the United States, more than 
two-thirds of the credentials presented to the house since the enact- 
ment of the law would have been worthless. The clerk has always 
wisely avoided such a strict construction of the statute as would 
render it virtually inoperative and void. He has considered the 
reason and object of the statute, and the circumstances under which 
it was enacted, and has given to it a construction which does not 
sacrifice its spirit to its letter. He has accepted those forms of 
credentials which, taken in connection with the statutes of the 
particular state, and of the United States, and those public facts 
which he is bound officially to recognize, show him that the repre- 
sentatives have been regularly elected, according to law. 

§ 737. The word " duly" (which is not mentioned in the statute) 
is often prefixed to the word elected ; but it adds nothing to its 
meaning. The same thing is true of the word "regularly" (which 
is mentioned in the statute). When a governor officially declares 
that a representative was " elected," without any qualification of 
that declaration, he means that he was regularly and duly elected 
according to law. If he does not mean that, he is guilty of duplic- 



616 

ity. It is a trick to say that he is elected, and not to mean that 
he is regularly and legally elected. It is dishonest to say that he 
was elected, and to mean that the election was not genuine, but 
only a sham. Only in the mouth of a deceitful officer could a 
certificate that a representative " was elected," mean less than that 
he was duly elected, or less than that he was regularly elected 
according to law. This statute was not framed to guard against 
the prevarications of corrupt officials, who can as easily falsify 
in one form as in another. 

§ 738. In most cases the state laws provide for the credentials 
of representatives in congress. But if, in any case, a state should 
fail to make such provision by statute, the executive authorities of 
the state, or the election officers, would of course communicate, in 
some way, to the house of representatives the result of the elec- 
tion. And this mode of communication, having been approved and 
accepted by the house, would have precisely the same validity for 
the clerk, and also for all other officers of the government, as those 
credentials, which are specifically prescribed by state law. The 
clerk, therefore, accepts as " credentials " whatever the practice 
of the house recognizes as credentials, the form being ordinarily pre- 
scribed by state law. And if these credentials show the represent- 
ative to have been regularly elected, in accordance with the laws of 
the particular state, or the laws of the United States, the clerk enrolls 
his name at the organization of the house. The credentials may 
consist of a governor's certificate, a governor's proclamation, a 
certificate of a secretary of state, a return of a state or district 
board of canvassers, or whatever else the authorities of the par- 
ticular state may, with the approval of the house, transmit as the 
means of informing the house of the election of its own members. 
If the credentials come substantially in the form prescribed, and 
from the officer indicated by the state law, their virtue and efficacy 
are precisely the same, so far as the clerk's duties are concerned, 
whether they emanate from a governor, secretary of state, county 
judge, or any other officer of the state or district. Whatever power 
the states may have to prescribe the forms of credentials of repre- 
sentatives, certainly that power must be subject to the power of 
congress in the premises. If it be assumed that it is competent 
for congress to say what the form of these credentials shall be, and 
what officer shall issue them, still congress has not said this. It 



617 

has gone no farther than to provide that if these credentials, what- 
ever their form or source may be, shall show the representative to 
have been regularly elected, in accordance with the laws of the 
state, or the laws of the United States, and not otherwise, his name 
shall be inscribed by the clerk on the roll of the house. 

§ 739. It is provided, in the constitution of the United States, 
that the senators and representatives, the members of the several 
state legislatures, and all executive and judicial officers, both of 
the United States and of the several states, shall be bound by 
oath, or affirmation, to support that constitution. The act of June 
1, 1789, J required all senators and representatives of the United 
States, all senators and representatives in state legislatures, and 
all other officers of the United States and of the several states, to 
take the following oath, or affirmation : " I, A. B., do solemnly 
swear, or affirm (as the case may be), that I will support the con- 
stitution of the United States." It was provided that this oath, 
or affirmation, should be administered, by any one member of the 
house of representatives, to the speaker, and by the speaker to 
all the members of the house present, and to the clerk, before the 
transaction of any other business, and to the members who should 
afterwards appear, before they should take their seats. It was 
also provided that the president of the senate, for the time being, 
should administer this oath or affirmation, to each senator, before 
he should take his seat, and that any senator might administer the 
oath, or affirmation, to the president of the senate. In other cases 
the oath, or affirmation, was to be administered by the persons 
authorized by law to administer oaths of office. 

§ 740. The act of July 2, 1862, requires that every person 
elected, or appointed, to any office of honor or profit, under the 
government of the United States, either in the civil, military, or 
naval departments of the public service, excepting the president 
of the United States, shall, before entering upon the duties of such 
office, and before being entitled to any of the salary or other 
emoluments thereof, take and subscribe the following oath or affir- 
mation : " I, A. B., do solemnly swear (or affirm) that I have never 
voluntarily borne arms against the United States, since I have 
been a citizen thereof ; that I have voluntarily given no aid, coun- 
tenance, counsel, or encouragement to persons engaged in armed 

1 1 Stat. 23. 



618 

hostility thereto ; that I have neither sought, nor accepted, nor 
attempted to exercise, the functions of any office whatever, under 
any authority, or pretended authority, in hostility to the United 
States ; that I have not yielded a voluntary support to any pre-, 
tended government, authority, power, or constitution, within the 
United States, hostile or inimical thereto. And I do further swear 
(or affirm) that, to the best of my knowledge and ability, I will 
support and defend the constitution of the United States against 
all enemies, foreign and domestic ; that I will bear true faith and 
allegiance to the same ; that I take this obligation freely, without 
any mental reservation, or purpose of evasion ; and that I will 
well and faithfully discharge the duties of the office on which I 
am about to enter, so help me God." It is provided, in the act 
of July 18, 1868, that " whenever any person, who has participated 
in the late rebellion, and from whom all legal disabilities arising 
therefrom have been removed by act of congress, by a vote of 
two-thirds of each house, has been, or shall be, elected, or 
appointed, to any office, or place, of trust, in, or under, the gov- 
ernment of the United States, he shall, before entering upon the 
duties thereof, instead of the oath prescribed by the act of 
July 2, 1862, take and subscribe the following oath, or affirma- 
tion : ' I, A. B., do solemnly swear (or affirm) that I will support 
and defend the constitution of the United States against all 
enemies, foreign and domestic ; that I will bear true faith and alle- 
giance to the same ; that I take this obligation freely, without any 
mental reservation, or purpose of evasion ; and that I will well and 
faithfully discharge the duties of the office on which I am about 
to enter, so help me God.' " 1 

§ 741. In determining the validity of an election held by a legis- 

1 On the 19th of June, 1868, it was two, shall take and subscribe the follow- 

enacted that "all legal and political ing oath: I, Roderick R. Butler, do 

disabilities, imposed by the United solemnly swear (or affirm) that I will 

States upon Roderick R. Butler, of Ten- support and defend the constitution of 

nessee, in consequence of participation the United States against all enemies, 

in the recent rebellion, be and the same foreign and domestic ; that I will bear 

are hereby removed. And the said But- true faith and allegiance to the same ; 

ler, on entering upon the discharge of that I take this obligation freely, with- 

the duties of any office, to which he has out any mental reservation, or purpose 

been, or may be, elected, or appointed, of evasion ; and that I will faithfully dis- 

instead of the oath prescribed by the act charge the duties of the office on which I 

of July two, eighteen hundred and sixty- am about to enter, so help me God." 



619 

lative body, it may become necessary to ascertain how many mem- 
bers are requisite to constitute a quorum of the body, for the election 
of officers. The constitution of the United States not only fails 
to fix the number of members of the house, but it also fails to 
prescribe any rule by which congress shall fix that number, beyond 
the mere designation of a maximum of one for every thirty thou- 
sand people, and a minimum of one for each state. Between 
these limits it leaves all to the discretion of congress. 1 

§ 742. The principle that a quorum consists of a majority of the 
entire senate has been maintained in numerous decisions of the 
senate. On the fourth of March, 1789, there were eleven states 
in the union entitled to twenty-two senators. But only twenty 
had been chosen. The first New York senators were not chosen 
until more than four months afterward. The senate being with- 
out a quorum, adjourned from day to day until March 28, 1789, 
when eleven senators took their seats. Although these constituted 
a majority of the senators then duly chosen, the senate, which 
then contained several of the framers of the constitution, held that 
they did not constitute a quorum. Not until the attendance of 
twelve senators on the 6th of April, 1789, did the senate recog- 
nize the presence of a quorum. 

§ 743. On the fifth of November, 1804, there were seventeen 
states, entitled to thirty-four senators. On that day a quorum did 
not attend. On the next day seventeen senators took their seats ; 
but, although one of the thirty -four senators had resigned, and 
his successor was not chosen until the thirteenth of November, 
the seventeen were held not to constitute a quorum. On the sev- 
enth eighteen senators took their seats, and it was decided that a 
quorum was present. On the second of November, 1812, there 
were eighteen states, entitled to thirty-six senators. One of the 
Louisiana senators had resigned, and his successor was not chosen 

1 The provisions of the federal consti- Abt. 1, Sec. 3. The senate of the 

tution are in these words : United States shall be composed of two 

Art. 1, Sec. 2. The house of repre- senators from each state, chosen by the 

sentatives shall be composed of members legislature thereof for six years. * 

chosen every second year by the people . Art. 1, Sec. 5. Each house shall be 

of the several states. * The number of the judge of the elections, returns, and 

representatives shall not exceed one for qualifications of its own members, and a 

every thirty thousand, but each state majority of each shall constitute a 

shall have at least one representative. quorum to do business. 



620 

until December 1, 1812. But the senate decided that eighteen 
senators, although a majority of those duly chosen, did not con- 
stitute a quorum. On the third of November twenty senators took 
their seats and made a quorum. On the 6th of December, 1842, 
there were present twenty-six senators. The states at that time 
numbered twenty-six. Since the adjournment of the senate Mr. 
Prentiss, of Vermont, had resigned, and Mr. Southard, of New 
Jersey, had died. No successors of these senators appeared on, 
or before, December sixth, 1842 ; and yet the senate decided that 
twenty-six did not constitute a quorum, and for that reason ad- 
journed. 1 

§ 744. On the sixth day of January, 1790, when there were 
only twelve states, entitled to twenty-four senators, twelve sena- 
tors appeared and decided that they constituted a quorum. On 
the fourth of May, 1864, the senate decided that a quorum of the 
senate consisted of a majority of the senators duly chosen. 
The following are the facts connected with this action of the sen- 
ate. On the seventeenth of May, 1862, Mr. Sherman introduced a 
resolution declaring that a majority of the senators duly elected 
and entitled to seats in that body constituted a quorum. At 
that time eleven states, claiming to be out of the union, were 
without representation in the senate of the United States. On the 
twenty -third of May, 1862, Mr. Foster, of the committee on the 
judiciary, to whom Mr. Sherman's resolution had been referred, 
reported the following resolution : " Resolved, That it is inex- 
pedient, at the present time, to take action on the question in- 
volved in the resolution, and the same is, therefore, indefinitely 
postponed." But on the fourth day of May, 1864, it was, by a vote 
of twenty-six to eleven, " Resolved, That a quorum of the senate 
consists of a majority of the senators duly chosen and qualified." 2 

1 Journals U. S. Senate. thirty-seven senators, I am told, who 

2 On the thirtieth of May, the fourth are accessible ; two or three are sick ; 

£ T , ,, ,, . ,. ,, ' £ T -,onn several have gone away, and several de- 

of June, and the thirtieth of June, 1862, , „ & J ' 

' ' ' sire to go." 

Mr. Sherman made ineffectual efforts to 

secure consideration of his resolution by 0n tne third of Jul y> he moved " to 
the senate. On the last mentioned day take U P the resolution; " but the mo- 
he said : ^ on failed by a vote of 16 to 22. On 

the seventh of July he renewed the 

"The condition of the senate is such ,■ j •, ■, £ , -, -., , 

,, , x ,. " , ,, ., motion, and it was defeated, without 
that I am satisfied any casualty would 

prevent us from doing business, under a division. On the ninth of July he 

the present practice. There are but moved again to take up the resolution ; 



621 



§ 745. The precedents of the house of representatives are sub- 
stantially like those of the senate. At the meeting of the first 



but, on motion of Mr. Grimes, it was laid 
on the table, by a vote of 19 to 18. Mr. 
Sherman, who was, at that time, the only- 
advocate of his measure, said : 

" If we do not adopt this rule, any acci- 
dent whatever may leave us without a 
quorum, and may defeat all the pending 
business. The very necessity of the case 
is an argument for the adoption of this 
rule. If this rule is not adopted, either 
now, or at some future time, the small- 
est state in the union, although it may 
contain less than one hundred thousand 
inhabitants, may break up this body." 

Mr. Carlisle replied : 

" If you adopt this resolution, you put 
it in the power of Delaware and Rhode 
Island to legislate for the entire thirty- 
four states of the union. If the other 
thirty-two states shall fail to elect sen- 
ators to this body, and Delaware and 
Ehode Island shall send their four sena- 
tors, to this body, three of those sena- 
tors will constitute a senate, within the 
meaning of the constitution under the 
resolution of the senator from Ohio. 
That will enable them to legislate for 
the entire thirty-four states composing 
this union." 

Mr. Foot, the president pro tempore 
of the senate, opposed the resolution and 
said : 

" To admit, or declare, a different 
state of things, by which the number of 
members of the body could be constitu- 
tionally reduced, would be to admit, or 
declare, that certain states are out of the 
union." 

On the eighth of March, 1864, Mr. 
Sherman introduced the proposition 
again, in these words : "Resolved, That 
a quorum of the senate consists of a 
majority of the senators duly chosen and 
qualified." On the twenty- sixth of April, 
1864, upon a call of the yeas and nays, 
only thirty-five senators appeared, the 
number of states then being thirty-four ; 
whereupon Mr. Sumner suggested that 
action should be had on Mr. Sherman's 
resolution. But he never offered any 
argument in its favor. Mr. Trumbull, 
chairman of the judiciary committee, to 



whom the resolution had been referred, 
in reply indicated the opposition of the 
judiciary committee to action on the res- 
olution. It was called up on the second 
of May, in the absence of Mr. Trumbull, 
and again on the third ; and on the 
fourth it was adopted by a vote of 
twenty-sis to eleven. There were then 
thirty-four states, of which eleven were 
in rebellion. The other twenty-three 
had forty-six senators. So while sixty- 
eight senators constituted a full senate, 
and forty-six then represented states not 
in rebellion, only twenty- six, a little over 
one-third of the whole number, or one- 
half of those representing loyal states, 
voted for this resolution. Only two sen- 
ators, Messrs. Sherman and Johnson, 
ever advocated the resolution in de- 
bate. 

Mr. Johnson prefaced his remarks 
with these words: "It would be idle, 
Mr. President, to assert that the opinion 
which I am about to express is free from 
doubt." He took the position that the 
provision making a majority of each 
house a quorum, meant a majority, not 
of all the members, but of the members 
chosen. He based this position upon 
three distinct grounds. The first was, in 
substance, this : In both branches of the 
clause, " Each house shall be the judge 
of the elections, returns, and qualifica- 
tions of its own members, and a majority 
of each shall constitute a quorum to do 
business," the same house is meant. The 
quorum is to consist of a majority of the 
same house which is to judge of the 
elections, returns, and qualifications of 
the members. But the house which is to 
judge of the elections, returns, and qual- 
ifications of the members is composed, 
not of all the members, but of the members 
duly chosen. Therefore, the house, a 
majority of which constitutes a quorum, 
is composed, not of all the members, but 
of the members duly chosen. 

It is not surprising that this reasoning 



622 



congress it was decided, by the house of representatives, which 
also contained some of the members of the convention which framed 



should have been unsatisfactory to the 
senator himself. For it is very evident 
that the house, which is authorized to 
judge of the elections, returns, and qual- 
ifications of members, consists of the 
quorum present, and not, as Mr. Johnson 
supposes, of all the members duly chosen. 
Therefore, if the body which is author- 
ized to judge of the elections, qualifica- 
tions, and returns of the members, is the 
body a majority of which is to consti- 
tute a quorum, then a quorum is to con- 
sist of a majority of a quorum. 

The fallacy of the argument which 
leads to such consequences is this : It 
ignores the fact that the term • ' house '> 
is used in two senses, no I only in the con- 
stitution, but also in statutory, parlia- 
mentary, and common language. In one 
sense it means the quorum, whatever 
that may be. In the other it means the 
body out of which the quorum is con- 
stituted. It is used in both senses in the 
clause under consideration, and when 
this clause is so read, the quorum be- 
comes a majority of the house, which 
means something, and not a majority of 
a quorum, which means nothing. When 
it is declared in the constitution that 
" each house may determine the rules of 
its proceedings," the quorum is meant, 
not the entire body out of which the 
quorum is formed. But when it is said 
that ' ' the house of representatives shall 
be composed of members chosen every 
second year," the body itself, and not 
the quorum, is meant. When it is pro- 
vided that " each house shall keep a 
journal of its proceedings," it is the 
quorum that is meant, not the whole 
body ; but when it is provided that " the 
senate of the United States shall be com- 
posed of two senators from each state," 
the meaning is not that the quorum, but 
that the body itself, shall be so com- 
posed. Under that clause in which it 
is provided that if the president disap- 
prove a bill " he shall return it, with his 



signature, to that house in which it shall 
have originated," his action is valid 
if he sends it to a house which contains 
a quorum, whether it does or- not con- 
tain all the members, or all the members 
duly chosen. 

Mr. Johnson's second argument in 
favor of the position that a quorum of 
the senate is a majority of the members 
duly chosen is based on these clauses : 
"The senate of the United States shall 
be composed of two senators from each 
state, chosen by the legislature thereof." 
"The house of representatives shall be 
composed of members chosen every sec- 
ond year." He was of the opinion that 
these clauses made the senate and house 
of representatives to consist of those who 
at the time had been duly chosen. The 
result of such an interpretation would 
be that if an extra session of congress 
should be called, when only Delaware had 
held a congressional election, her single 
representative would constitute the house 
of representatives of the United States. 

The third argument is based upon this 
clause, that " the congress, whenever 
two-thirds of both houses shall deem it 
necessary, shall propose amendments to 
this constitution." He says that this has 
been held to mean two-thirds of those 
present and voting (being not less than 
a quorum), and the same construction 
ought to be applied to the quorum clause. 
But that would make a quorum to consist 
of a majority of those present and voting 
(being not less than a quorum), or, in 
other words, would make a quorum to 
consist of a majority of a quorum. But 
then the quorum clause and this amend- 
ment clause cover entirely different 
ground. While the quorum clause de- 
termines the minimum number of mem- 
bers who may constitute a house for the 
transaction of business, the amendment 
clause only provides what number of 
affirmative votes in each house may carry 
the measure. 



623 



the constitution, that a quorum consisted of a majority of the 
whole number of representatives. This decision was repeated, at 



The consideratioDS which influenced 
twenty-four of those who voted for the 
resolution cannot be ascertained from 
what they said in debate, for they said 
nothing. But it is, nevertheless, quite 
impossible to mistake the reasons for 
their vote. They deferred the adoption 
of this resolution until the latest possible 
moment, and then silently based their 
action on the ground on which Mr. Sher- 
man had invoked it. It was, like the 
iron-clad oath, a war measure, adopted 
to avert the most imminent peril of the 
government. At that time the condition 
of our armies and of the unfinished busi- 
ness of the two houses was such that 
the problem of preventing the defeat of 
pending measures, by a loss of a quorum, 
had become a most urgent question 
of life and death to the nation. The 
parties to the great struggle, which 
had raged since 1861, were preparing for 
what promised, and proved, to be the de- 
cisive encounter. The resolution was 
adopted on the fourth of May, 1864. It 
was the very day designated for the simul- 
taneous movement of the armies of the 
east, commanded by General Grant, and 
those of the west, commanded by Gen- 
eral Sherman. Gold, the unfailing in- 
dex of the nation's peril, stood at 179|-. 
It had never risen so high before that 
day. The great legislative measures 
necessary to carry the government 
through the crisis of its supreme peril 
were still pending in the two houses of 
congress. The bill empowering the pres- 
ident to call, at his discretion, for vol- 
unteers ; the bills providing for a loan 
of $400,000,000 ; for a national currency ; 
for an increase of the pay of the army ; 
for an organization of the department 
of internal revenue, and for an increase 
of duties on imports : and the bills mak- 
ing appropriations for the army, for the 
navy, and for fortifications ; all these 
were still to be passed. The failure of 



one of these might, the failure of all, or 
of any large number of them, must, have 
proved fatal to the national existence. 
It was under this dire stress of circum- 
stances that the resolution passed. 

But, then, these senators did not re- 
gard the eleven insurgent states as en- 
titled, at that time, to representation in 
the senate, under that clause of the con- 
stitution in which it is provided that ' : the 
senate of the United States shall be 
composed of two senators from each 
state." They did not look upon them 
as states in their constitutional relations 
to the union. It was not a case of con- 
tested, or disputed, or irregular, or in- 
valid election, in these states ; but it was 
a case of deliberate and absolute refusal 
to elect. More than that, they them- 
selves claimed to be no longer states in 
the union, and sent their senators and 
representatives to a different congress; 
and our congress responded to this claim 
by placing them in the condition, not 
indeed of states out of the union, nor 
of states in the union, nor of territories 
in the union, but of states out of their 
constitutional relations to the union ; so 
that, both upon their own claim and upon 
the response of congress thereto, they 
had ceased to be states in the union, in 
such sense as to be, at that moment, 
entitled, under the constitution, to rep- 
resentation in congress ; and their seats 
were not to be counted, in estimating 
the quorum of the senate. 

Upon the theory that the insurrection- 
ary states were out of their practical 
relations to the government, and were 
not entitled to representation, either in 
congress, or in the electoral college, con- 
gress passed a joint resolution in these 
words : 

"Whereas the inhabitants and local 
authorities of the states of Virginia, 
North Carolina, South Carolina. Georgia, 
Florida, Alabama, Mississippi, Louisiana, 
Arkansas, and Tennessee rebelled against 



624 



the commencement of the second session of the first congress, on 
the fourth of January, 1790 ; also on the thirteenth of November, 
1804, the twenty-first of February, 1805, the twenty-eighth of 
February, 1805, the twenty-seventh of June, 1809, the twenty- 
eighth of June, 1809, the second of February, 1810, and the twenty- 
sixth of February, 1810. 1 



the government of the United States, 
and were in such condition on the eighth 
day of November, 1864, that no valid 
election for electors of president and 
vice-president of the United States, ac- 
cording to the constitution and laws 
thereof, was held therein on said day : 
Therefore, 

" Be it resolved by the senate and house 
of representatives of the United States of 
America in congress assembled, That the 
states mentioned in the preamble to this 
joint resolution are not entitled to rep- 
resentation in the electoral college for 
the choice of president and vice-pres- 
ident of the United States for the term 
of office commencing on the fourth day 
of March, 1865 ; and no electoral votes 
shall be received or counted from said 
states concerning the choice of pres- 
ident and vice-president for said term of 
office." 

If these vacant seats had been five, in- 
stead of twenty-two, and had been left 
vacant, not by an attempted secession 
of eleven states then actually at war 
with the United States, but by the resig- 
nation or death of one senator from New 
York, of another from Ohio, and of 
another from Indiana ; and by a failure 
of choice in the legislatures of Pennsyl- 
vania and Illinois, it is impossible to be- 
lieve that twenty-six senators, or even 
two senators, could have been found to 
vote for Mr. Sherman's resolution. 

The action of the senate on a joint 
resolution to amend the constitution, 
adopted March 2, 1861, has been re- 
garded as a precedent on the question 
under consideration. The constitutional 
provision is that such a resolution must 
be supported by " two-thirds of both 
houses." But that resolution did not 
receive the votes of two-thirds of all the 
members of both houses. The senate, 
upon a point of order raised, decided 



that the votes of two-thirds of the sen- 
ators present only were required. Of 
course it was understood that the sen- 
ators present constituted a quorum of 
the whole number. It has been claimed 
that, inasmuch as the constitution makes 
a quorum to consist of " a majority of 
each house," and also requires that a 
resolution to amend the constitution 
shall receive the votes of "two-thirds of 
both houses," this action of the senate 
constituted a precedent in favor of the 
rale that a quorum of the senate was a 
majority of the senators duly chosen. 
The senate, however, did not decide 
that such a resolution required the votes 
of two-thirds of the senators duly chosen, 
but that it required only the votes of 
two-thirds of the senators present. 
Upon this principle, if transferred to 
the quorum, the quorum will consist of 
a majority of the members present. And 
this brings us again to the absurd result 
that a quorum is a majority, not of the 
whole number of senators, nor of the 
senators duly chosen, but of a quorum. 

1 Journals U. S. house of represent- 
atives. 

Opposed to these precedents stand 
only two decisions of the house made 
before the year 1862. These decisions 
were made on the seventh of December, 
1802, and the seventh of December, 1808, 
respectively, to the effect that less than 
a majority of the whole number of rep- 
resentatives might constitute a quorum. 
Mr. Speaker Grow also made a contrary 
ruling on the nineteenth of July, 1861. 
The facts were these : When the house 
of representatives assembled, on the 
fourth day of July, 1861, the late rebel- 
lion had commenced. Eleven states 



625 



§ 746. In an act regulating the times and manner of choosing 
United States senators, congress has attempted to make the quorum 
of the joint assembly, convened for the election of senator, " a 
majority of all the members elected to both houses." The follow- 
ing is the statutory provision : " But if the same person has not 
received a majority of the votes, in each house, or if either house 
has failed to take proceedings, as required by this section, the 
joint assembly shall then proceed to choose, by a viva voce vote 
of each member present, a person for senator, and the person who 
receives a majority of all the votes of the joint assembly, a majority 
of all the members elected to both houses being present and 
voting, shall be declared duly elected." 1 This act makes the 



claimed to have seceded from the federal 
union, and they chose no representatives, 
for the thirty-seventh congress, except- 
ing two from the state of Virginia ; Mr. 
Speaker Grow ruled that, in estimating 
the quorum of the house, their vacant 
seats were not to be counted, under that 
clause of the constitution which provides 
that ' ' the house of representatives shall 
be composed of members chosen, every 
second year, by the people of the several 
states." The proceedings are set forth on 
page 2 1 of the Congressional Globe for 
July 19, 1861, in the following words : 

"The Speaker. The chair calls the 
attention of the house to the question 
what constitutes a quorum. The chair 
will have read the provision of the con- 
stitution on the subject. It is in article 
one, section five. 

"The clerk read as follows: 'Each 
house shall be the judge of the elections, 
returns, and qualifications of its mem- 
bers ; and a majority of each shall con- 
stitute a quorum to do business.' 

"The Speaker. The clerk will now 
read article one, section two of the con- 
stitution. The clerk read as follows : 
' The house of representatives shall be 
composed of members chosen every sec- 
ond year, by the people of the several 
states.' 

" The Speaker. There were chosen to 
this congress one hundred and eighty- 
three members. The chair decides, un- 
der that clause of the constitution, that 
ninety-two would be a majority of all 
the members chosen, and the majority 
of a quorum would be forty-seven." 

40 



1 The question of the constitutionality 
of this legislation seems to be practically 
settled in the affirmative, by the concur- 
rent action of the federal senate and of 
the state legislatures ; but, as an origi- 
nal question, it would obviously suggest 
very grave difficulties. The only theory 
upon which the election of a senator, by 
a joint assembly of members of the 
two houses of the state legislature, can 
be reconciled with the constitution, is 
that such joint assembly is, pro hdc mce % 
the legislature. For it is the mandate of 
the constitution that ' ' the senate of the 
United States shall be composed of two 
senators from each state chosen by the 
legislature thereof for six years." But 
congress is powerless to establish, or 
change, the quorum of a state legisla- 
ture, whether it acts in one house 
or joint assembly, or in two separate 
houses. If the power to establish, 
or change, the quorum of either house 
of a state legislature, or of a joint as- 
sembly of members of the two houses, 
can, under the federal constitution, be 
exercised by any authority, that author- 
ity must be the people of the state. No 
such power can be incident to the power 
which is conferred by the constitution 
upon congress, to make, or alter, regula- 
tions as to the time and manner of 
choosing senators. 



626 

quorum of the single house, or joint assembly, in which the legis- 
lature acts, in the choice of senators, to consist of a majority, not 
of all the members elected to each house, but of all the members 
elected to both houses. If the body, so constituted, is not the 
state legislature, this act of congress, like the prior corresponding 
practice of some of the states, is unconstitutional. If it is the 
state legislature, in the sense of the constitution, then the consti- 
tution permits the state legislature to consist of one house only. 

§ 747. The house of peers may proceed with business, if only 
three lords be present, of whom one may be a lord attending to 
take the oath. But the commons require as many as forty, inclu- 
ding the speaker, for the transaction of business. This rule, which 
appears to have been first established in 1640, is only one of usage, 
and may be altered at pleasure. 1 Immediately after prayers, the 
speaker of the house of commons counts the house, from the 
clerk's chair ; and, if forty members be not present, he waits until 
four o'clock, when, standing on the upper step of the speaker's 
chair, he again counts ; and, if the proper number have not arrived 
before he ceases counting, he adjourns the house, without motion, 
until the next sitting day. 2 

§ 748. It is not clear, beyond a reasonable doubt, that the words 
" members elected," in a state constitution declaring that "no bill 
shall be passed, by either branch (of the legislature), without an 
affirmative vote of a majority of the members elected thereto," 3 
include all the members elected at the last preceding election, 
although some may have ceased to be members at the time wdien 
the vote is taken on the passage of the bill ; and a reasonable 
doubt, on this point, is sufficient to sustain the validity of an act 
passed by the affirmative vote of eleven senators, in a body which 
consisted, when full, of twenty-two members, one member having 
resigned, after the commencement of the session at which the act 
was passed. 4 

1 May Pari. Pr. 220 ; 2 Com. J. 63 ; 48 port, are used in this constitution, they 
id. 305, 310, 660, 804 ; 88 id. 95. shall be construed to mean a majority 

2 May Pari. Pr. 220-1. of the whole number of members to 

3 Const. West. Va. 1863, art. 4, s. 37. which each house is at the time entitled, 

4 Osburn v. Staley, 5 W. Va. 85. In under the apportionment of representa- 
the constitution of 1872 it is provided tives established by the provisions of 
that "whenever the words ' a majority this constitution." See Const. W. Va. 
of the members elected to either house 1872, art. 6,s. 32. 

of the legislature,' or words of like im- 



CHAPTER XXXIV. 

RULES OF PROCEDURE AND EVIDENCE, IN CONTESTED ELECTION 
CASES, COMMON TO STATUTORY AND QUO WARRANTO PRO- 
CEEDINGS, AND PARLIAMENTARY CONTESTS. 



Secs. 

1. Power to regulate evidence . 749 

2. Documentary proofs. 

(1) Transcripts . . . 750-757 

(2) Poll-books; registration 

lists ; original ballots 758, 760 

3. Nature, order, and competency 

of evidence .... 761 

4. Presumptions and burden of 

proof ... . . 762-764 

5. Judicial notice .... 765 

6. Evidence as to qualifications, or 

vote, of voter . . . 766-768 



Secs. 

7. Proof of contents of lost certifi- 
cates, returns, poll-books, and 
tally-sheets . . . .769 

8. Hearsay evidence . . . 770 

9. Returns and certificates set 
aside, or contradicted . . 771 

10. Ballots contradicted, or ex- 

plained, by extrinsic evidence, 772 

11. Admissions and declarations of 

voters, or of their agents, 773-775 

12. Recount of ballots . . 776-791 

13. Construction and validity of 

election laws and regulations, 792 



§ 749. Under the British constitution, it is competent for parlia- 
ment to determine what evidence shall be admissible on the trial 
of the title to any office, whether legislative, executive, or judicial. 
And in the United States, it is generally competent for the legisla- 
tive authority to prescribe rules of evidence, for contested elections 
of executive and judicial officers. But it is ordained, in the con- 
stitution of the United States, that " each house shall be the judge 
of the elections, returns, and qualifications of its own members ; 
and the generally accepted opinion is that neither congress, nor 
the state legislatures, can bind either house, by laws prescribing 
rules of evidence for contested election cases. 1 The power of the 
respective houses of the state legislatures to regulate the time, 
place, and manner of taking testimony, in cases of contested seats, 
depends on the provisions of the state constitutions. A statute 
of Alabama, enacted in 1868, empowered the board of supervisors 
of elections, upon good and sufficient evidence that fraud had been 
perpetrated, or unlawful or wrongful means resorted to, to prevent 
electors from freely and fearlessly casting their ballots, to reject 



See §§722-727, 961. 

627 



628 

illegal or fraudulent votes, cast at any polling place, and declared 
such rejection final, unless appeal should be taken, within ten 
days, to the probate court. In the case of a contested election 
of representative in congress, which occurred while this statute 
was in force, it was held, by the committee, that it was not compe- 
tent for the legislature of a state to declare what should, or should 
not, be considered, by the house of representatives, as evidence to 
show the vote actually cast, in any district, for representative in 
congress, or to declare that the decision of a board of county canvass- 
ers, rejecting a precinct vote, should estop the house from further 
inquiry ; and that the fact that no appeal had been taken from the 
decision of the board of canvassers, rejecting the vote of a precinct, 
could not preclude the house from going behind the returns and 
considering the effect of the evidence presented. 1 In cases tried 
in 1793 and 1797 the committee of elections prescribed the mode 
of taking evidence. 2 

§ 750. A certified copy of a document is admissible, in evidence, 
(1) when the document is by law made a record of the office of the 
certifying officer, and (2) when the officer's certified copy is made 
evidence by the statute. Whenever it is an essential part of the 
officer's duty to deliver copies of a record, such copies are evi- 
dence. Although there are decisions adverse to the admissibility of 
copies, certified by officers having the custody of the originals, 
but not specially appointed by law to deliver copies thereof, the 
weight of authority seems to have established the rule that a copy, 
given by a public officer, whose duty it is to keep the original, 
ought to be received in evidence. When the law does not author- 
ize a document to be recorded, a certified copy is not admissible. 
A certificate of a mere matter of fact is not evidence, unless made 
evidence by statute. If it was the officer's duty to record the fact, 
the proper evidence of the fact is a copy of the record, duly 
authenticated. If the copy also include facts, which he was not 
authorized to record, as to those facts his certificate will be unoffi- 
cial and merely the statement of a private person. A certified 
statement of the substance, or effect, of a recorded document is 
not admissible, unless made so by statute. A certificate that a 
document is not recorded in the records of the certifying officer 

J Norris v. Handley, Smith, 68. 2 Latimer v. Patton, C. & H. 69 ; Ruth- 

erford v. Morgan, id. 118. 



629 

is not admissible. The loss of papers cannot be proved by certifi- 
cates. A record, not made in compliance with the statute author- 
izing a document to be recorded, is not admissible to prove the 
original, nor is a copy of the record admissible, for that purpose. * 
§ 751. Certified transcripts, of returns, legal in form and sub- 
stance, are primary legal evidence, and unless impeached are con- 
clusive. 2 A certificate of election, when made in obedience to a 
mandamus, has the same legal force and effect as when otherwise 
made. 3 The age of a voter may be proved by the record of his 
birth inserted in the town records, coupled with evidence of his 
identity. 4 Under a statute providing that "the keeper of the 
poor-house shall keep an account, showing the name of each per- 
son admitted to the county poor-house, the time of his admission, 
the place of his birth, and shall, each year, file, with the county 
clerk of his county, a copy of the same," the record so kept is 
competent evidence to show whether a voter was or was not a 
pauper. 5 The register of parliamentary voters is admitted in 
evidence, upon its mere production by the returning officer, and 
therefore an examined or certified copy of it is also admissible. 6 
If a statute make no provision either for the custody, or for a final 
record, of the papers relating to contested election cases, to be 

1 1 Greenl. 531, n. 3, Redfield's ed.; 1 Cross v. Mill Co. 17 111. 54 ; Martin v. 

Starkie, 267, 9th ed.; Fitler®. Shotwell, Anderson, 21 Ga. 113; Wilcox v. Kay, 

7 Watts & Serg. 14 ; Brown v. Hicks, 1 1 Hayw. 410 ; Traramell v. Thurmond, 

Pike, 232 ; Haile v. Palmer, 5 Mis. 403 ; 17 Ark. 218 ; Reams v. Swoope, 2 Watts, 

Bunk v. Ten Eyck, 4 Zabr. 756 ; State v. 75 ; Pidge v. Taylor, 4 Mass. 541 ; Mor- 

Cake, id. 516 ; Omichund v. Barker, gan v. Bealle, 1 Marsh, 310 ; Barry's 

Willes, 549 ; Oakes v. Hill, 14 Pick. 442 ; Lessee v. Bhea, 1 Overton, 345 ; Coite v. 

Wolfe v. Washburn, 6 Cow. 261 ; Jack- Wells, 2 Verm. 318 ; Bank v. White, 1 

son v. Miller, id. 751; Governors. Mc- Wright, 52; Bemis v. Becker, 1 Kan. 

Affee. 2 Dev. 15 ; United States ». Bu- 226 ; Bank v. Bronson, 14 Mich. 361 ; 

ford, 3 Pet. 12 ; Childress v. Cutter, 16 Publes v. Tomlinson, 33 Ala. 336 ; Drake 

Miss. 24; Johnson v. Hocker, 1 Dall. v. Merrill, 2 Jones (N. C), 368 ; Mays v. 

406 ; Governor v. Bell, 3 Murphy, 331 ; Johnson, 4 Ark. 613 ; Womack v. Wil- 

Governor v. Jeffreys, 1 Hawks, 297 ; son, Litt. Sel. Ca. 292 : Miller's Lessee 

Stewart v. Allison, 6 S. & R. 324 ; New- v. Holt, 1 Tenn. Ill ; Turner v. Step, 1 

man v. Doe, 4 How. 552 ; Caale v. Har- Wash. 319 ; Mitchell v. Mitchell, 3 Stew, 

rington, 7 Har. & Johns, 147; Webster & Post. 81. 

v. Harris, 16 Ohio, 490 ; N. Y. Dry Dock 2 Bisbee v. Hull, 1 Ells. 315. 

v. Hicks, 5 McL. Ill; Hathaway v. 3 Ib. 

Goodrich, 5 Verm. 65 ; Stephen v. Clem- 4 Freeman's case, C. S. & J. 543. 

ents, 2 N. H. 390; Griffin v. Reynolds, 5 Le Moyne v. Farwell, Smith, 406. 

17 How. 609 ; Stoner v. Ellis, 6 Ind. 152 ; fi Reed v. Lamb, 6 H. & N. 75. 



630 

adjudicated by the judge of the circuit court, as therein provided, 
such papers may properly be deposited with the clerk of the 
circuit court, but they do not thereby become records of his office 
capable of authentication by his certified transcripts. 1 The 
authenticity of any document, produced by the clerk of the crown, 
as relating to a specified election, may not now be questioned. 
Any indorsement, appearing on any packet of ballot papers so 
produced, will be taken as evidence that such papers are what 
they are, in the indorsement, stated to be. And the production 
of a ballot paper is prima facie evidence that the person, whose 
number on the register has been marked in the counterfoil of the 
ballot paper, voted with that ballot paper. 2 

§ 752. When the statute requires the precinct officers to prepare 
and transmit to the board of county canvassers a statement of the 
result of the election, and to forward a copy, or duplicate, of such 
statement to the secretary of state, if such a statement be filed 
with the county clerk, and a copy thereof, authenticated by the 
clerk as a full and correct return of the election for the precinct, 
be produced, in evidence, it will be inadmissible, because it will not 
come from such a source as to be an official paper, under the 
statute. 3 A transcript, certified by an officer, who is not the legal 
depositary of the original, is not admissible in evidence, unless 
authorized by statute. 4 A prothonotary who, by statute, is made the 
depositary of military returns pertaining to his own county, can only 
give certified transcripts of those of which he is the lawful custodian. 
But the secretary of the commonwealth, being the lawful depositary 
of the military returns for the entire state, can give certified tran- 
scripts in all cases. 5 The mere fact that a register of votes, without 
authority of law, marked a registered person's name on the list 
with a letter C, to indicate that he was colored, arid posted the 
list, for some time, in a public place, and that no application was 
made for the removal of the letter, is not evidence that the person 
was colored. 6 Where it appeared, upon examination of the record 
of a town meeting, that the whole number of votes recorded 
exceeded the aggregate of the votes for the several candidates, 

1 Davidson v. Woodruff, 68 Ala. 356. "Fullers. Dawson, 2 Bart. 126; Koontz 

2 35 and 36 Vict. c. 33, rule 43. v. Coffroth, id. 138. 

3 United States v. Souders, 2 Abb. U. 5 Fuller v. Dawson, id. 126. 

S. 456. 6 White v. Clements, 39 Ga. 232. 



631 

evidence was received to explain the discrepancy, and to show 
that the record was erroneous. 1 

§ 753. A county clerk's certificate is admissible to authenticate 
copies of documents regularly filed in his office, but not to prove 
facts within his knowledge, nor facts ascertained by an examina- 
tion of the records of his office, unless made admissible by statute. 2 
Certifying officers can only make their certificates evidence of the 
facts which the statute requires them to certify ; when they under- 
take to go beyond this, and certify other facts, their statements 
are unofficial, and no more evidence than the statements of un- 
official persons. 3 It will not be presumed, in the absence of 
proof, that canvassers counted votes which were irregularly and 
defectively returned, and a certificate, by a county clerk or secre- 
tary of state, that such votes were, or were not, counted, is not 
competent evidence, unless authorized by statute. 4 A super- 
intendent of registration, whose only duty, under the statute, is 
to make out and deliver to the secretary of state a copy of the 
registration list of the county, verified by his official certificate, 
has no right to interpolate other facts, or statements, into the 
copy, nor will his certificate be evidence beyond the verification 
of the copy. 5 

1 Tewksbury case, C. S. & J. 427. required the probate judge, instead of 

2 Goggin v. Gilmer, 1 Bart. 70 ; Arm- the clerk, to certify the transmitted 
strong v. Boylan, 1 South. 76. abstract. Bennett v. Chapman, 1 Bart. 

3 Switzler v. Anderson, 2 Bart. 374. 204. Objection was made to one pre- 

4 Boyd v. Kelso, 1 id. 121. cinct return, on the ground that it was 

5 Switzler v. Anderson, 2 id. 374. not signed by either the judges or clerk, 
Where, in a county embracing three and was otherwise informal, and ap- 

precincts, the clerk transmitted, not peared to be only a poll-book, contain- 
only the county abstract, as required by ing the words and figures, " Easton, 19 ; 
the statute, but also his certificate that Scott, 14," without any designation of 
from two of the precincts no poll-books, the office for which they were candi- 
but only precinct abstracts, had been dates. Objection was made to another 
received, the majority of the committee precinct return, on the ground that 
held that this latter certificate, being there was no certificate of the adminis- 
extra-official, was not evidence, and tration of the oath of office to the clerks, 
could not impeach the abstracts of the and that the only evidence of the date 
probate judge and householders, which of the election was such as could be 
were duly certified and transmitted by drawn from the date of the oaths of the 
the clerk, and that the votes of this judges. Both of these objections were 
county were unlawfully excluded from overruled, on the ground that there was 
the territorial canvass. But the minority nothing to show the existence of these 
dissented, on the ground that the statute irregularities, except an extra-official 



632 

§ 754. The law never allows a certificate of a mere matter of fact 
not coupled with any matter of law, to be admitted as evidence. 
Even the certificate of the king, under his sign -manual, of a matter 
of fact (except in one old case in chancery, Hob. 213), has been 
always refused. 1 A clerk's certificate of the non-appearance of a 
name on the record is not admissible. 2 The certificate of a recording 
officer that a record does not exist cannot be received in evidence. 3 
The certificate of a town clerk is not evidence of the time during 
which the polls were kept open. 4 A certificate of the selectmen 
and clerk of a town is not evidence of what Qccurred at the town 
meeting. 5 A certificate of the register of deeds that the words 
" not sealed " were entered in the record, opposite the names of 
the signers of a deed, is not admissible. 6 . A clerk's certificate of 
the substance, or effect, of a record cannot be received. 7 If the 
law merely authorize the county clerk to certify company returns 
he will have no power to certify regimental returns. 8 

§ 755. But the property qualification of a member of the house 
of representatives of Massachusetts was provable by the certificate 
of the selectmen and assessors of the town. 9 The validity of an 
election, in that state, being questioned, on the ground that the town 
did not contain a sufficient number of ratable polls to entitle it to 
two members, a certificate of the assessors, corroborated by the 
selectmen, as to the number of ratable polls therein on the first of 
May preceding the election, was admitted as evidence of the 
requisite number. 1 ° The assessor's certificate alone is presumptive 
evidence of the requisite number of ratable polls. * 1 

§ 756. Under a statute requiring the selectmen to make out a 
registration, or voting list, at least ten days before the election, 
and to use the same, at the election, such list is an official docu- 

note, or memorandum thereof, made, by 3 Stoner v. Ellis, 6 Ind. 152 ; Cross v. 

the clerk, on the abstracts transmitted Mill Co. 17 Ind. 54. 

to the governor; and the committee 4 Bishop's case, C. S. & J. 522. 

considered this evidence insufficient to B Shattuck's case, id. 526. 

establish the objections. If the facts 6 Bank v. Bronson, 14 Mich. 361. 

existed they might have been shown by 7 Drake v. Merrill, 2 Jones (N. C), 368. 

official copies of the poll-books Easton?;. ti Thompsons. Ewing, 1 Brewst. 67. 

Scott, C. & H. 286. A certified abstract, 9 Kellogg's case, C. S. & J. 62 ; Hunt's 

or computation, is not evidence. Fuller case, id. 81. 

v. Dawson, 2 Bart. 126. 10 Whitney's case, id. 63 ; id. 64. 

'Omichund v. Barker, Willes, 550. n Medford case, id. 76; Kaymond case, 

2 Martin v. Anderson, 21 Ga. 113. id. 82. 



633 

ment, and is, in theory, in the custody of the keeper of the records, 
documents, official files, and papers of the town. It is the primary 
evidence that a name in question is, or is not, on the list, and is 
essential to the proof that a party has been admitted, or rejected, by 
the selectmen, as judges of the qualifications of electors. Before 
using secondary evidence, notice to produce, or a subpoena duces 
tecum, must be issued to the keeper of the records of the town. 
The original document, if produced and authenticated, as the regis- 
tration or voting list, is conclusive evidence upon the question 
whether a person was admitted, at such meeting, as a qualified voter, 
and parol proof, or other secondary evidence, is not admissible 
to contradict it. 1 The poll-books are prima facie evidence of 
the number of votes cast, and of the result of the election. 2 In 
a contest on the merits the poll-book is prima facie evidence 
of the qualifications of the voters. 3 All votes, recorded on the 
poll-lists, are to be presumed good, unless impeached by evi- 
dence. 4 An election was held in a small room, with only one 
window in front, of which the lower sash was boarded up. The 
judges refused admittance to all supporters of one of the tickets. 
The polls were closed at noon, and the ballot-box carried away by 
two of the judges. An attempted challenge was met by threats of 
violence. After the closing of the polls the ballot-box was removed 
to another place and the votes counted there. There was evidence 
showing that one of the judges, and one of the clerks, prepared 
the poll-book, during the night before the election, and wrote, in 
the list of voters, a large number of fictitious names. It was 
admitted that one hundred and twenty-seven fictitious names were 
written on the poll-books, and one hundred and twenty-seven 
spurious ballots deposited in the ballot-box, before the opening 
of the polls. It was held that these facts deprived the poll-books 
of their validity, as prima facie evidence of the result of the 
election. 5 * 

§ 757. An act authorizing a township election, to determine 
whether the bonds of the township should be issued in aid of a 

1 Harris v. Whitcomb, 4 Gray (Mass.), 4 Porterfield v. McCoy, G. & H. 267. 
433. See Humphrey v. Clingman, 5 Mete. 

2 Russell v. State, 11 Kan. 308. (Mass.) 168. 

3 State v. Johnson, 17 Ark. 407 ; Blair 5 Russell v. State, 11 Kan. 308. 
v. Barrett, 1 Bart. 308. 



634 

railway company, contained the following sections : Cf It shall be 
and is hereby made the duty of the judges and clerks of said town- 
ship election, at the close thereof, which shall be at five o'clock, 
in the evening of said day, to certify at the foot of the poll-books 
of said election, the result thereof, and to deliver cuch poll- 
books and certificates to the clerk of such township, whose duty 
it shall be to file one of the same in his office and the other in the 
office of the clerk of the county court of said county, within ten 
days from the date of such election j" 1 and " No neglect, omission, 
irregularity, informality, or want of technicality, on the part of 
any persons authorized to carry out the provisions of this act, 
shall inure to the loss, defeat, or disadvantage of said railroad com- 
pany, or other holders of the bonds of said township, nor to the 
defeat, or delay, of the subscription to the capital stock of said 
railroad company, nor on the assessment, levying, and collecting 
of the taxes for the payment of said bonds, nor for any other 
matter or thing done under, or by virtue of, this act : Provided, 
The provisions of the same shall have been substantially complied 
with." 2 On an application for a mandamus to compel the super- 
visors to issue the bonds of the township, objection was made to 
the introduction of a document purporting to be a copy of the 
poll-book. This book, as returned, exhibited the name of each 
voter, with the number of his vote, followed by the tally of the 
judges and clerks, showing the entire vote to have been sixty-nine, 
the vote for the subscription thirty-nine, and the vote against the 
subscription thirty ; and it was so certified by the judges and 
clerks. The copy produced in evidence was authenticated by the 
county clerk's certificate that "the foregoing is a true and correct 
copy of an election held at the time and place and for the purposes 
therein specified." It was held that this document, although in- 
formal, was good in substance when connected with the testimony 
of the clerk that it was a true copy of the poll -book. 3 

§ 758. Papers, purporting to be ballots cast at the election, were 
produced from the town clerk's office ; and it appeared that he had 
been appointed town clerk, some days after the election at which 
the ballots in question were cast, and had not received the ballots, 
in the first instance, but that they had been delivered to him, by 

*Stat. 111. 1859, p. 527, s. 5. 8 Piatt V. People, 29 111. 54. 

2 Id. p. 529, s. 12. 



635 

his predecessor in office, shortly after his own appointment. It 
was held, by the court of queen's bench, that the ballots were not 
sufficiently indentified to be evidence of the votes given. 1 

§ 759. Upon the trial of a contested election the general rule, 
which requires the production of the best evidence of which the 
case in its nature is susceptible, applies in respect to the contents 
of poll-books and tally-sheets, and the number and contents of 
ballots cast, whenever the production of the same is attainable. 2 
The duly certified return is the best evidence of the result of the 
election ; but, if the existence of such return be disproved, or its 
character impeached, secondary evidence will be admissible to 
prove the actual state of the vote. 3 The original tally-sheet is 
prima facie evidence of the result. 4 The ballots are better evi- 
dence of the number of votes cast than the tally-sheets. 5 But in 
Alabama the poll-lists stand on a different ground ; unexplained they 
have more sanctions of verity than the ballots in the box, for which 
there are no corresponding names, or numbers, on the poll-lists. 6 
When primary evidence of the number of ballots cast cannot be pro- 
cured, the courts must open the door to any legal evidence tending 
to show the result, so as to give effect to the will of the citizens 
expressed at the ballot-box. The ballots having been lost, or 
destroyed, the testimony of witnesses may be received to show 
the state of the vote. 7 Where, in a proceeding to contest an elec- 
tion, on the ground that ballots cast for the contestant were 
fraudulently abstracted from the ballot-box, a witness is called to 
prove that he cast a ballot for the contestant, if the ticket cast by 
such witness can be found, and can be identified, by him, it will 
be the best evidence, but, if the ticket cannot be found, or cannot be 
identified by the witness, then it will be competent for him to state 
for whom he voted. 8 If the record of a town meeting be intelli- 
gible, and consistent with itself, and contain every material state- 
ment required by law, it will be the best and highest evidence of 
the facts therein stated, and must stand as true, unless impeached 
as fraudulent ; but where it is inconsistent and ambiguous, or 

1 Eegina v. Ledgard, 8 A. & E. 535. ft Spence v. Judge, 13 Ala. 805. 

2 Sinks v. Beese, 19 Ohio St. 306. 6 Griffin v. Wall, 32 id. 149. 

3 People v. Vail, 20 Wend. 12 ; Gid- 7 Warren v. McDonald, 32 La. An. 987. 
dings v. Clark, Smith, 91. 8 Wheat v. Kagsdale, 27 Ind. 191. 

4 State v. Donnewirth, 21 Ohio, 216 ; 
Powers v. Keed, 19 Ohio St. 189. 



6$6 

deficient as to a material fact, the ambiguity may be explained, or 
the deficiency supplied, by extraneous evidence. 1 Evidence, which 
might have been sufficient to put the voter on his explanation, if 
challenged at the polls, is not necessarily sufficient to establish 
the illegality of a vote which has been in fact received. 3 Under 
an act of congress authorizing an Indian tribe to elect commis- 
sioners, for the division of their lands, and providing that the 
officer, who presides at the election, " shall immediately certify 
that fact, setting forth the names of the commissioners who shall 
be elected, and shall make two copies of said certificate, one of 
which he shall file in the office of the registrar of the land district," 
transmitting the other to the president, it was held that a certified 
copy of the certificate was the proper evidence of the election, 
and that the testimony of a witness was not admissible to show 
that he was elected one of the commissioners. 3 

§ 760. It is proper, on the trial of an issue joined on an infor- 
mation in the nature of a quo warranto, to try the title to an office, 
to introduce in evidence the ballots cast at an election. 4 On the 
trial of such an issue, it is also proper to give in evidence the 
entries of public officers, made in the discharge of public duties ; 
and this rule applies to an indorsement, by the inspector of the 
election, made upon a bag containing ballots. 5 Letters received 
are competent evidence to show, by their postmarks, where the 
writer was at the time. 6 Evidence showing to what political 
party a voter belonged, whose partisan he had been, whose friends 
claimed for him the right to vote at the time, what he said of his 
intention before and what he did after voting, is admissible as 
tending to prove for whom illegal votes were cast. 7 A certificate 
of commissioners appointed, according to law, to recount the bal- 
lots cast at an election, is competent evidence. 8 It is competent 
to show that an officer of the election stated, on the morning after 
the election, that there was a difference between the ballots and 
the return. 9 

§ 761. It is not competent, in an election contest, in the state 
of West Virginia, to prove, by parol evidence, that an alien was 

1 Thayer's case, C. S. & J. 395. 6 Griffin v. Wall, 32 Ala. 149. 

2 Finley v. Bisbee, 1 Ells. 74. 7 Delano v. Morgan, 2 Bart. 168. 

3 Bovee v. McLean, 24 Wis. 225. 6 State v. Shay, 101 Ind. 36. 

4 State v. Shay, 101 Ind. 36. 9 Thompson v. Ewing, 1 Brewst. 67. 
6 lb. 



637 



naturalized, and that the record of his naturalization was omitted, 
through inadvertence, or for any other reason. 1 But parol testi- 
mony is admissible to prove the naturalization of a representative 
in congress ; an office record is not essential to the validity of such 
naturalization. 2 The opinion of a witness, on the question whether 
an election was free and fair, based on his observation at the polls, 
is not admissible as evidence. 3 Tally-sheets, kept by the officers 
of election, without authority of law, are not competent evidence, 
in a contested election case. 4 A friendly witness cannot be asked, 
on examination in chief, as to his previous written declaration, in 
order to refresh his memory, when examined for the purpose of 
striking off the vote of another person, on a scrutiny. 5 Evidence 
of an attempt to get a petitioner out of the way is not admissible. 6 
No name should be stricken from the poll, as unknown, upon the 
testimony of one witness only that no such person is known in the 
county ; and when a man of like name is known, residing in 
another county, some proof, direct or circumstantial, other than 
the presence of such a name on the poll-book, will be required of 
his having voted in the county or precinct where the vote is 
assailed. 7 A name will not be stricken from the poll-book on the 
mere proof that a minor of the same name resided in the county. 
Some proof, direct or circumstantial, will be required that the vote 
was cast by the minor, at the precinct or county where it is 
assailed. 8 Votes recorded upon the poll-books as given to one 
candidate, at a viva voce election, cannot be transferred to another 
by oral testimony. 9 Decisions of committees of the house of 
commons in cases of elections are not authorities in courts of law. 1 ° 



1 Dryden v. Swinburne, 20 W. Va. 89. 

2 Lowry v. White, Cong. Rec. Feb. 
1888. In this case there was testimony 
to the effect that a certificate of natural- 
ization had been issued and lost. It was 
therefore analogous to Coleman's case, 
ante § 38. See Coleman's case, 15 Blatch. 
406; McCarty v. Marsh, 5 N. Y. 263; 
Campbell v. Gordon, 6 Cranch, 179 ; In- 
surance Co. v. Tisdale, 91 U. S. 245 ; 
Stark v. Insurance Co. 7 Cranch, 420 ; 
The A corn, 2 Abb. U. S. 434 ; 1 Greenl. 
Ev. ss. 508, 509, 513 ; 1 Wharton Ev. ss. 



Lessee v. Rochester, 7 Wheat. 546 ; 
Green -». Salas, Fed. Rep. July, 1887 ; 
Christern's case, 56 How. Pr. 5. Same 
case, 43 N. Y. Sup. Ct. 523. 
3 Patton v. Coats, 41 Ark. 111. 

4 Echols v. State, 56 Ala. 131. 

5 McLaren v. Milne Home, 44 L. T. N. 
S. 289. 

6 Haywood v. Dodson, id. 285. 

7 Letcher v. Moore, C. & H. 715. 

8 lb. 

9 lb. 

in Nash's case, 1 Deac. & Chit. 449. 



136, 1302 ; Spratt v. Spratt, 4 Pet. 393 ; Dictum, 
Desty's case, 8 Abb. (N. Y.) 250 ; Blight's 



638 

§ 762. It is the duty of judicial tribunals, in cases of contested 
elections, to declare null and void laws enacted in violation of the 
constitution ; but such judicial interference cannot be justified in 
doubtful cases ; the presumption must always be in favor of the 
validity of the laws, if the contrary be not clearly demonstrated. 1 
The fact that the judges of election permitted a man to vote is 
prima facie proof of his legal right to vote, and will be conclusive, 
in a contested case, unless overcome by counter-proof. 2 The 
burden of proof is always upon the party attacking the official 
returns. The presumption is that the officers, charged, by law? 
with the duty of ascertaining and declaring the result, have per- 
formed that duty faithfully. The action of a board of supervisors 
of election, when in due form, is prima facie correct, and must 
stand until it is shown, by extrinsic evidence, to be illegal or 
unjust. The presumption is always against the commission of a 
fraudulent or illegal act, and in favor of the honesty and cor- 
rectness of the official acts of a sworn officer. The true rule, while 
it may not require the exclusion of all reasonable doubt, does require 
clear and satisfactory proof of fraud, or mistake, before the legal 
presumption in favor of the correctness of the acts of sworn officers 
will be nullified. 3 It cannot be presumed that an officer de facto 
has neglected to make any necessary qualification. 4 If the validity 
of an election be contested, on the ground that the officer lacked the 
prescribed property qualification, the burden of proof will be on the 
petitioner. 5 The failure of the officers of election to return, to the 
prothonotary's office, the affidavits of non-registered voters, does 
not raise a presumption that they also failed to require such 
affidavits. 6 The presumption is that those electors who do not 
vote acquiesce in the action of those who do vote. 7 

§ 763. The law presumes that sworn officers of election perform 
their duties, until the contrary is shown. 8 The presumption is in 
favor of the correctness of the record kept by officers of election. 
In the absence of proof, it will not be presumed that canvassers 

1 Lehman v. McBride, 15 Ohio St. 573 ; 3 Bromberg v. Haralson, Smith, 355; 
see also Cooper v. Telfair, 4 Dall. 14 ; Barr's case, L. & K. 254. 
Armstrong 9. Treasurer, 10 Ohio, 237 ; 4 Bank «. St. Joseph, 46 Mich. 526. 
Kailway Co. v. Commissioners, 1 Ohio 5 Turner's case, C. S. & J. 21. 

St. 77 ; Goshorn 9. Purcell, 11 id. 641. 6 Curtin 9. Yocum, 1 Ells. 416. 

2 Webster v. Gilmore, 91 111. 324. 7 State 9. Burder, 38 Mo. 450. 

8 Koontz>. Coffroth, 2 Bart. 138. 



639 

based their determination on documents which did not conform 
to the requirements of the law. 1 While the mere presence of 
regular returns, in the proper offices, might be prima facie evidence 
that they were, in fact, included in the canvass, the presence of 
irregular returns cannot he prima facie evidence that they were 
so included. On the contrary, the presumption is that such returns 
did not enter into the canvass. 2 In the absence of proof to the 
contrary it will be presumed that army tally-sheets were duly 
transmitted, with the poll-books, to the auditor of state, accord- 
ing to law. 3 When either party asks that a vote shall be deducted 
from those cast and returned for his opponent, the burden of 
proof is on him to show that the elector, whose vote is questioned, 
voted for his opponent, and that he lacked some one of the quali- 
fications of electors. 4 When the rejection of votes, by a board 
of canvassers, is based, not upon testimony, but wholly on the poll- 
list and registration list, the presumption in favor of the legality 
of votes, which have been received by the officers provided by law 
for that purpose, is stronger than the presumption in favor of the 
correctness of the action of the board in rejecting the same. 5 

§ 764. After a vote has been admitted, something more is re- 
quired to prove it illegal than to throw doubt upon it. There 
ought to be proof which, weighed by the ordinary rules of evidence, 
satisfies the mind that a mistake has been made. 6 Under a con- 
stitution declaring that, " for the purpose of voting, no person 
shall be deemed to have gained, or lost, a residence, by reason of 
his presence, or absence, while employed in the service of the 
United States," 7 when the right of a United States soldier to vote 
is contested, the burden of proof is on the contestant. 8 If it be 
shown that a person, of the name of Peter Mason, voted at a con- 
tested election, and a man of that name be called, as a witness, 
and testify that he is of foreign birth, and has never been 
naturalized, he will be presumed to have been the person who 
voted, in the absence of express proof to that effect. 9 Where there 
are several persons of the same name, in the district, each of whom 

1 Koontz v. Coffroth, 2 Bart. 138. . 6 Gooding v. Wilson, Smith, 79. 

2 Fuller v. Dawson, id. 126. 7 Const. Cal. 1850, art. 2, s. 4. 
3 Follet v. Delano, 1 id. 113. 8 People v. Kiley, 15 Cal. 48. 

V 4 Cessna v. Myers, Smith, 60. 9 Clark v. Eobinson, 88 111. 498. 

5 Norris v. Handley, id. 79. 



640 

is eligible to the office of representative in the state legislature, 
and only one of them has been designated, as a candidate, ballots 
bearing that name are to be presumed to have been cast for such 
candidate. 1 When a voter's property qualification is questioned 
the burden of proof is on the party who questions it. 2 While 
all voters are presumed to know the law, and the time when the 
full terms of offices expire, they are not presumed to know the 
fact that an officer has resigned, or died. 3 If the ballot-box be 
tampered with, while in the custody of the friends and supporters 
of one of the parties, the presumption will be that any changes 
made in the ballots were made in his interest and to his advan- 
tage. 4 

§ 765. The courts take judicial notice of the day upon which 
the general election is held, and of the officers to be voted for at 
each election. 5 It was held, by the supreme court of Kansas, 
that courts were required to take judicial notice, without allega- 
tion or proof, that the fifth day of November, 1872, was the day 
on which the general election for that year was held, that it was 
a day on which vacancies in county offices could have been filled, 
and that county officers, elected to fill such vacancies, were en- 
titled to take their offices as soon as elected and qualified. 6 The 
court will take judicial cognizance of the fact that, under the con- 
stitution and laws of the state, the terms of public officers expire 
on certain dates. 7 The genuineness of a seal of court is to be 
determined by inspection. 8 The committee of elections of the house 
of representatives has taken judicial notice of the fact that the board 
of state canvassers never had possession of the election returns, 
and, therefore, never canvassed them. 9 In a contested election case 
the court will not take judicial notice of papers, which are on file 
in the office of the prothonotary, but are not referred to in, nor 
made part of, the petition or record. 1 ° 

§ 766. " Public policy requires that the veil of secrecy should 
be impenetrable, unless the voter himself voluntarily determines 

1 Macomber *>. Fisher, L. & R. 311. 7 Stubbs v. State, 53 Miss. 437. 

2 Worthington's case, C. S..& J. 182. B Commonwealth v. Sheriff, 1 Brewst. 
3 Tillson v. Ford, 53 Cal. 701. 183. 

4 McMoyne v. Farwell, Smith, 406. 9 Sheridan v. Pinchback, Smith, 196. 

5 State v. Minnick, 15 Iowa, 123. 10 Carpenter's case, 2 Pars. 537. 

6 Ellis v. Reddin, 12 Kan. 306. 



641 

to lift it; his ballot is absolutely privileged." 1 While the qualifi- 
cation of an elector is an open question, he cannot be compelled 
to disclose for whom he voted. When his non-qualification ap- 
pears as a fact, or is admitted, the privilege is lost. 2 While 
a voter cannot be compelled to disclose, either directly or indi- 
rectly, the contents of his ballot, or to testify for whom he 
voted or to what party he belonged, the exemption from obliga- 
tion to disclose the character of his vote is a personal privilege 
which can be claimed only by the voter himself, and the ques- 
tion can therefore be put to the witness, and, if he sees fit to 
answer, there is no objection to the testimony. 3 A witness called 
to prove merely the hour in which he voted for a certain candi- 
date, cannot be cross-examined as to his qualifications. 4 A voter's 
declarations to others respecting his vote have been held to be 
competent evidence. 5 

§ 767. Voters cannot testify directly for whom they intended to 
vote. The intention of the voter is to be ascertained, not from his 
testimony as to the mental purpose with which he deposited his 
ballot, nor from his own notions of the legal effect of what it con- 
tained or omitted, but by a reasonable construction of his acts. 6 
The testimony of voters, concerning their own votes, is not admis- 
sible to contradict the ballots and record until it is shown by 
affirmative testimony that the judges, or clerks, or other persons, 
withdrew the tickets of electors and substituted others for them. 7 
" A pardon reaches both the punishment prescribed for the offence, 
and the guilt of the offender ; and, when the pardon is full, it 
releases the punishment, and blots out of existence the guilt, so 
that, in the eye of the law, the offender is as innocent as if he had 
never committed the offence." It restores the right to vote and 
to hold office, and all other civil rights. 8 

1 Cooley, Const. Lim. 606 ; Thompson E. 100 ; Baker *>. Hunt, L. & K. 378 ; 
v. Ewing, 1 Brewst. 67. Hood v. Potter, id. 217. See Keed v. 

2 People v. Cicott, 16 Mich. 328 ; Kneass* 2 Pars. 504. 
Thompson v. Ewing, 1 Brewst. 67. 7 Otero v. Gallegos, 1 Bart. 177. 

3 Palmer®. Howe, L. & B. 145; Kneass' 8 Garland's case, 4 Wall. 333 ; People 
case, 2 Pars. 553. v. Pease, 3 Johns. Cas. 333 ; Wood v. 

4 Thompson v. Ewing, 1 Brewst. 67. Fitzgerald, 3 Oregon, 569 ; Perkins ®. 

5 Davis v. Murphy, L. & R. 177. Stevens, 24 Pick. 277 ; Deming's case, 

6 People v. Saxton, 22 N. Y. 309 ; Peo- 10 Johns. 230 ; 4 Blackst. Comm. 402 ; 
pie v. Cicott, 16 Mich. 283 ; State®. Grif- 8 Bac. Ab. Pardon. 

fey, 5 Neb. 161 ; Wright v. Hooper, L. & 

41 



642 

§ 768. To show for whom a person voted testimony of persons, 
who saw the ballot cast, statements of the voter to other persons, 
and evidence that the voter was generally reported to belong to a 
certain political party, were admitted as competent. 1 It is compe- 
tent to show for what ticket an unqualified voter asked at the 
polls ; but it is not competent to show what tickets the person, 
from whom he obtained his ballot, was distributing, or to ask 
whether all the tickets of a certain party bore the name of a par- 
ticular person. 3 An unqualified voter cannot be asked what 
ticket he voted. The question should be, for whom did you vote ? 3 
An elector cannot be interrogated as to his political opinions 
unless he has previously avowed them. 4 When the election is 
made by ballot, and the voter is protected from disclosing his vote 
as a witness, general reputation, as to his political character and 
associations, will be received as evidence of the contents of his 
ballot, and, in the absence of such proof, evidence of the voter's 
declarations will be received. 5 Evidence showing to what political 
party a voter belonged, whose partisan he had been, whose friends 
claimed for him the right to vote at the time, what he said of his 
intention before and what he did after voting, is admissible as 
tending to prove for whom illegal votes were cast. 6 

§ 769. The duly certified return is the best evidence ; but if it 
be shown that this does not exist, secondary evidence should be 
admissible to prove the actual state of the vote. The failure of an 
officer, either by mistake or design, to certify a return should not 
be allowed to nullify an election, or to change its result, if other 
sufficient and satisfactory evidence be produced to show what the 
vote actually was. 7 In quo warranto, when the person, who claimed 
the office held by the defendant, testified that his certificate of 
election was lost, or destroyed, and the county clerk testified that 
there was not in his office, or, so far as he knew, in the county, 
any record, or written evidence, showing who were elected to the 
different county offices, without expressly stating that he had made 
search for such record, or written evidence, it was held that a suffi- 

1 Palmer v. Howe, L. & R. 145. "Delano v. Morgan, 2 Bart. 168. 

2 Thompson v. Ewing, 1 Brewst. 67. 7 McKenziefl. Braxton, Smith 22 ; Daily 

3 lb. v. Estabrook, 1 Bart. 299 ; Morris v. Van 

4 Tomline v. Tyler, 44 L. T. N. S. 187. Laningham, 11 Kan. 269. 

5 New Jersey cases, 1 Bart. 22. 



643 

cient foundation was laid for secondary evidence of the election 
and certificate, and that the testimony of the county judge, who 
testified that he saw the certificate, was admissible to prove its 
contents ; and also that it was proper to ask the clerk if he knew 
who had been elected to the office in controversy. 1 

§ 770. Hearsay evidence is not admissible. 2 On the trial of a 
contested election case a witness will not be permitted to state 
what other persons, not parties to the record, told him, after the 
election, as to the number of 'times they voted, and the names 
under which they voted. 3 Statements made by distributers of 
tickets, at the polls, respecting the tickets which they were giving 
out will not be received in evidence. 4 

§ 771. On an information in the nature of a quo warranto to 
determine the title of the defendant to an office, it is competent 
to go behind the certificate, which would otherwise be conclusive, 
to ascertain the real facts of the case. 5 So it is the duty of the 
house of representatives to go behind the certificates, for the pur- 
pose of inquiring into and correcting any mistakes, which may be 
brought to its notice. 6 But a party, affected by the acts of a per- 
son claiming to be an officer, will not be permitted, in an action 
for damages, to go behind the certificate to show that it was issued 
in fraud, or mistake. 7 Under a statute authorizing an action to 
" be brought by the attorney-general, in the name of the people 
of this state, upon his own information, or upon the complaint of 
a private party, against any person who usurps, intrudes into, or 
unlawfully holds, or exercises, any public office, civil or military, 
or any franchise within this state," 8 an action may be maintained 
against a person in possession of an office, to which he has not been 
legally chosen, although he holds a certificate of election. 9 

1 People v. Clingan, 5 Cal. 389. 8 Wood's Cal. Dig. p. 207, art. 1044, s. 

2 Ingersoll v. Naylor, 1 Bart. 33. 310. 

3 Gilliland v. Schuyler, 9 Kan. 569. 9 People v. Jones, 20 Cal. 50. 

4 Thompson v. Ewing, 1 Brewst. 67. The election law of Pennsylvania pro- 

5 People v. Pease, 27 N. Y. 45 ; Jud- vided that the county judges of election 
kins v. Hill, 50 N. H. 140; Peoples. Sea- should meet to canvass and return the 
man, 5 Denio, 409 ; Attorney-General vote of the district, on the third 
v. Barstow, 4 Wis. 567 ; Field v. Avery, Tuesday in October, but if any of the 
14 id. 122 ; State v. Pierrepont, 29 id. militia, from either of the counties 
608. of the district, should be in the service 

6 Chrisman v. Anderson, 1 Bart. 328. of the United States, at the time of the 

7 Hadley v. Albany, 33 N. Y. 603. election, in such case the judges should 



.644 



§ 772. Extrinsic evidence is admissible to show for whom a 
ballot was intended ; but such evidence can only explain or apply 
without contradicting or fabricating the ballot. 1 The description 
of the office on a ballot being applicable to more than one office 
the intent of the voter may be shown by parol proof. 2 When the 
ballot of a voter shows that he actually voted a certain way, and 
he testifies that he voted another way, without showing, or alleging, 



meet on the fifteenth of November. The 
judges of Bedford and Huntington coun- 
ties, neither of which had any militia in 
the service of the United States, at the 
time, met on the day designated in Oc- 
tober. The judge of Franklin county, 
which had a part of its militia in the ser- 
vice of the United States, failed to meet 
the other judges, and no return was 
made. On the fifteenth of November 
the judges of Bedford and Franklin 
counties met, but the Huntington 
county judge failed to attend, and no re- 
turn was made. On the first day of May 
following, all the judges met and re- 
turned David Bard as duly elected. The 
committee reported that in consequence 
of this informality they had obtained and 
canvassed the county returns themselves 
and found Bard elected ; whereupon 
they reported that David Bard was en- 
titled to his seat in the house. Bard's 
case, C. & H. 116. Where the contest- 
ant charged that the sitting member's 
certificate of election was a forgery, and 
the sitting member charged that the con- 
testant's had been obtained by bribery, 
it was held that these certificates, having 
been considered by the house, in de- 
termining who was, prima facie, entitled 
to hold the seat pending the contest, 
were immaterial on the hearing of the 
merits of the case. Morton v. Daily, 1 
Bart. 402. A return signed by only 
one of three judges required by law to 
sign it will be rejected. But the house, 
in considering the merits of the case, 
will go behind the returns to ascertain 
the number of legal votes actually cast 
for each candidate. Norris v. Handley, 



Smith, 68. No name should be stricken 
from the poll, as unknown, upon the tes- 
timony of one witness only that no such 
person is known in the county ; and 
where a man, of like name, is known, 
residing in another county, some proof, 
direct or circumstantial, other than the 
presence of such a name on the poll- 
book, will be required of his having 
voted in the county, or precinct, when 
the vote is assailed. Letcher v. Moore, 
C. & H. 751. 

Where the official return of a precinct 
gave the contestant 475 and the sitting 
member 676 votes, and more than 500 
witnesses testified that they voted for the 
sitting member, but a recount of the bal- 
lots showed 670 votes for the contestant 
and 479 for the sitting member, the ma- 
jority of the committee accepted the 
depositions as the best evidence. The 
house sustained the report of the com- 
mittee by a vote of 127 to 50. Reed v. 
Julian, 2 Bart. 822. 

When a county clerk testified that, 
upon a careful examination of the poll- 
book, in his office, he found that the 
contestant received nine more votes than 
were stated in the certificate of the sec- 
retary of state, the committee held that 
the additional votes were to be counted. 
Burch v. Van Horn, 2 Bart. 205. 

J Cooley Const. Lim. 770 ; Clark .v. 
Board of Examiners, 126 Mass. 283 : Car- 
penter v. Ely, 4 Wis. 258 ; McKenzie v. 
Braxton, Smith, 22 ; People v. Love, 63 
Barb. 535. 

2 State «. Goldthwait, 16 Wis. 146 ; 
State v. Elwood. 12 id. 552. 



645 

fraud, or mistake, such testimony is not admissible to prove that 
the voter's intention was different from that expressed in the ballot, 
which is the highest evidence of his intention. 1 The testimony of 
voters, concerning their own votes, ought not to be received, to 
contradict the ballots and the record, until it is shown, by affirm- 
ative testimony, that the judges, or clerks, or other persons, 
withdrew the tickets of electors and substituted others for them. 2 
Evidence of such facts as may be called the circumstances surround- 
ing the election, showing, for example, who were the candidates 
brought forward by the nominating conventions, whether other 
persons of the same names resided in the district from which the 
officer was to be chosen, and if so, whether they were eligible or 
had been named for the office, and if the ballot was printed imper- 
fectly, how it came to be so printed, and the like, is admissible 
for the purpose of showing that an imperfect ballot was meant for 
a particular candidate, unless the name is so different that to thus 
apply it would be to contradict the ballot itself, or the ballot is 
so defective that it fails to show any intention whatever, in which^ 
case it is not admissible. Under the constitution the house of 
representatives exercises, in contested election cases, the powers 
of courts of law and equity, and may look beyond the ballot tOj 
ascertain the intent of the voter. 3 

§ 773. When the secret ballot is used, it is ordinarily more dif- 
ficult to show for whom an illegal vote was cast than to prove its 
illegality. Recourse is sometimes had to the unsworn admissions 
or declarations of the voter himself. In England, where the vote 
was formerly given viva voce, the declarations of voters could be 
received in evidence to set aside the election of a member of par- 
liament ; as also, to diminish the poll, by removing an illegal vote, 
or to prove bribery of the voters ; but they were not admissible 
on a charge of bribery against a candidate. 4 Upon the authority 
of the English cases, the court of appeals, of the state of New 
York, in 1863, said : " In the case at bar the disqualification was 
proven by the voter himself ; but these authorities abundantly 
sustain the position that the declaration of the voter, as to his 

^eardstown v. Virginia, 76 111. 34; 4 Milborn Port case, 1 Doug. 67; II- 

Wigginton v. Pacheco, 1 Ells. 5. Chester case, 3 id. 76 ; Petersfield case, 

2 Otero v. Gallegos, 1 Bart. 177. id. 6 ; Worchester case, id. 150 ; Shaftes- 

3 McKenzie v. Braxton, Smith, 22. bury case, id. 150. 



646 

want of qualification, would have been admissible and legal evi- 
dence." 1 It is to be observed that the question now under con- 
sideration did not arise in the New York case, and vet the dictum 
of the judge was followed by the supreme court of Wisconsin, in 
a case in which the question did arise. The latter court said : 
" The objection to this evidence is that it was hearsay. To a cer- 
tain extent this may be so ; but the well settled and uniform 
practice is to allow it in contests of this nature. The People v. 
Pease, 27 N. Y. 45." 2 In Indiana acts performed and declarations 
made by persons near the election day, whether before or after it, 
are competent evidence of their intention as to domicile on that 
day. 3 The declarations of a voter as to the fact of his voting and 
the name of the person for whom he voted are admissible in Arkan- 
sas as evidence, when the purpose is not to exclude the particular 
vote but to show the existence of an unlawful combination by 
declarations composing a part of the res gestce.^ The house of 
representatives of the United States has generally accepted the 
English rule. 5 But it is held, both in the United States and in 
England, that declarations of voters, made after the election, are 
not admissible. 6 

§ 774. But the supreme court of Kansas disapproves these 
authorities, and holds as follows : " That so much of this testi- 
mony as purports to give the statements of third parties, as to the 
number of times and the names under which they had voted, is 
hearsay and incompetent seems to us clear. It is the testimony 

1 The People v. Pease, 27 N. Y. 45. as a party, and it is on that ground that 

2 State v. Olin, 23 Wis. 319. his declarations are admissible. The 

3 French v. Lighty, 9 Ind. 478. question is always considered to be 
4 Patton v. Goats, 41 Ark. 111. between the voter and the party ques- 

5 Bell v. Snyder, Smith, 247 ; Valland- tioning his vote, and not merely between 
igham v. Campbell, 1 Bart. 231; New the sitting member and the petitioner." 
Jersey cases, id. 22 ; Delano v. Morgan, Pale & Fitzh. Elect. Gas. 72. If the voter 
2 id. 168. is to be regarded as a party to the con- 

6 Lilley's case, C. S. & J. 201 ■ Hey- test, it is consistent with legal principle 
wood v. Dodson, 44 L. T. N. S. 285; to receive, in evidence, his declarations 
Dodge v. Brooks, 2 Bart. 78; Letcher v. against himself, on the ground that, being 
Moore, C. & H. 715 ; Tomline v. Tyler, against his own interest, they are proba- 
44 L. T. N. S. 187. bly true. But even in that case the 

It was stated before the elections com- declarations of the voter are not admissi- 

mittee of the house of commons of Eng- ble in his own favor. Beardstown v. Vir- 

land that "a voter, who has voted for ginia, 76 111. 34. 
the sitting member, is always considered 



647 

of what other persons told the witness, persons not parties to the 
suit, so that their admissions could be receivable. These declara- 
tions were not made at the polls, by persons conducting the 
election, and so as to make them part of the res gestce ; nor do 
they accompany a principal fact which they serve to quality or 
explain. They are simply statements concerning past transac- 
tions by strangers to the record. They come within none of the 
exceptions to the rule which excludes hearsay testimony. * 
We have examined The People v. Pease, 27 N. Y. ; State v. Olin, 
23 Wis. 319 ; and the note in 3 McCord, 230 ; and, so far as they 
enunciate any principles contrary to the doctrines here announced, 
we disapprove them." 1 The supreme court of Illinois questions 
the admissibility of the declarations of the voter to show his own 
disqualification, and denies the admissibility of such declarations 
to show how he voted ; it will not admit the declarations of a 
voter, to show his own disqualification, unless it be shown by other 
competent evidence that his vote was cast against the party object- 
ing to it. 2 A party to a contested election case cannot claim, as 
competent evidence for himself, the statements of a voter, made 
at one election precinct, and, at the same time, object to state- 
ments made by him, on the same subject, at another precinct. 3 ' 
The admissions of voters are sometimes held competent evidence 
to show for whom they voted, on the ground that the voters, them- 
selves, cannot be compelled to testify for whom their votes were 
cast. It is evident that this ground fails in the case of the legally 
qualified voter where he can be legally compelled to disclose his 
own vote, and also in the case of a voter who is not legally qualified 
and whose disqualification is shown by extrinsic proof. It has 
been held that the fact that voters are protected, by statute, 
against disclosing their votes, as witnesses, is no ground for the 
admission of their declarations, made after the election. 4 

§ 775. All declarations or statements made by voters after the 
election, relative to their right of suffrage, will be rejected. 5 It 
was claimed that inasmuch as the statute of North Carolina 
required elections to be held by ballot, and provided that voters 
should not be compelled to testify for whom they voted, proof of 

1 Gilliland ». Schuyler, 19 Kan. 569. 4 Newland v. Graham, 1 Bart. 5. 

2 Beardstown v. Virginia, 76 111. 34. 5 Letcher v. Moore, C. & H. 715. 

3 Norwood v. Kenfield, 30 Cal. 393. 



648 

their subsequent declarations ought to be admitted, as the next 
best evidence. The committee excluded such proof. 1 But the 
election being by ballot and the elector protected from disclosing 
his vote as a witness, the majority of the committee held that gen- 
eral reputation, as to his political character and the party to which 
he belonged, would be sufficient evidence of the " complexion of 
his vote," and, in the absence of such proof, received evidence of 
the voter's declarations, "the date and all the circumstances of such 
declarations being considered as connecting themselves with the 
questions of credibility and sufficiency." 2 Evidence of the state- 
ments of voters, showing how they voted, made four months after 
the election, is inadmissible. 3 The declaration of a voter, made at 
the time of the election, is competent evidence, as a part of the 
res gestae, to show how he voted or intended to vote. 4 



1 Newland v. Graham, 1 Bart. 5. The 
committee reported in favor of the con- 
testant ; hut the house declared the seat 
vacant. 

2 New Jersey cases, 1 Bart. 22. 

3 Dodge v. Brooks, 2 id. 78. 

4 Bell v. Snyder, Smith, 247. 
In the case of Cessna v. Myers, id. 
60, the committee on elections said : 

"Another question of importance, 
which has arisen in the discussion of the 
cause, is the question whether evidence 
of the declarations of alleged voters, 
made not under oath, in this country, 
should be received to show the fact that 
they voted, or for whom, or that they 
were not legally entitled to vote. 

' ' Some of the committee thin k that such 
evidence ought in no case to be admitted, 
except, of course, so far as declarations, 
made at the time, of the party's intent 
or understanding as to his theu present 
residence, or his purpose in a removal, 
is admissible as a part of the res gestae. 
All of the committee are of the opinon 
that such evidence is to be received with 
the greatest caution, to be resorted to 
only when no better is to be had, and 
only acted on when the declarations are 
clearly proved and are themselves clear 
and satisfactory. As this question has 
been quite fully considered it may be 
proper briefly to discuss it here. While 
the practice of the English house of 
commons is not uniform, the general 
current of the precedents is in favor of 



admitting the declarations of voters as 
evidence, The opinions of several Amer- 
ican courts and of some text-writers of 
approved authority are the same way. 
The correctness of this practice has been 
earnestly questioned in this house and 
there is one decision against it ; but, on 
the whole, the practice here seems to be 
in favor of its admission. In England, 
where the vote for members of parlia- 
ment is viva voce, the fact that the al- 
leged voter voted, and for whom, is sus- 
ceptible, commonly, .of easy proof by the 
record. In one case, however, where 
the poll-list had been lost, the parol 
declaration of a voter, how he voted, 
seems to have been received without 
question. * The action of the house 
heretofore does not seem to have been 
so decided, or uniform, as to preclude 
it from now acting upon what may 
seem to it the reasonable rule, even if it 
should think it best to reject this class 
of evidence wholly. But, as both parties 
have taken their evidence, apparently 
with the expectation that this class of 
evidence would be received, aud as, in 
view of the numerous and respectable 
authorities, it is not unlikely the house 
may follow the English rule, we have 
applied that to the evidence, with the 
limitation, of the reasonableness of 
which it would seem there can be no 
question, that evidence of hearsay decla- 
rations of the voter can only be acted 
upon when the fact that he voted has 
been shown by evidence aliunde, and 
when the declarations have been clearly 
proved, and are themselves clear and 



649 

§ 776. When the return and certificate of election are invalid, 
and are set aside, the election will not be avoided, if the true 



satisfactory." 
60. 



Cessna v. Myers, Smith, 



In a case determined by the house of 
representatives, in the forty second con- 
gress, Newland v. Graham, 1 Bart. 5, 
the committee in their report said : 

" The general doctrine is usually put 
upon the ground that the voter is a party 
to the proceeding, and his declarations 
against the validity of his vote are to be 
admitted against him as such. If this 
were true, it would be quite clear that 
his declarations ought not to be received 
until he is first shown aliunde, not only 
to have voted, but to have voted for the 
party against whom he is called. Other- 
wise it would be in the power of an illegal 
voter to neutralize wrongfully two of the 
votes cast for a political opponent ; first 
by voting for his own candidate ; second 
by asserting to some witness afterward 
that he voted the other way, and so hav- 
ing his vote deducted from the party 
against whom it was cast. But it is not 
true that a voter is a party, in any such 
sense that his declarations are admissible 
on that ground. He is not a party to the 
record. His interest is not personal or 
legal. It is frequently of the slightest 
possible nature. If he were a party, then 
his admissions should be competent as to 
the whole case, as to the votes of others, 
and the conduct of the election officers, 
which it is well settled they are not. 
Another reason given is that the inquiry 
is of a public nature and should not be 
limited to the technical rules of evidence 
established for private causes. This is 
doubtless true. It is an inquiry of a 
public nature, and an inquiry of the 
highest interest and consequence to the 
public. Some rules of evidence appli- 
cable to such an inquiry must be estab- 
lished. It is nowhere, so far as we know, 
claimed that in any other particular the 
ordinary rules of evidence should be re- 
laxed in the determination of election 
cases. The sitting member is a party 
deeply interested in the establishment 
of his right to an honorable office. The 
people of the district especially, and the 
people of the whole country are inter- 
ested in the question, who shall have a 
voice in framing the laws. The votes are 
received by election officers, who see the 
voter in person, who act publicly in the 



presence of the people, who may admin- 
ister an oath to the person offering to 
vote, and who are themselves sworn to 
the performance of their duties. The 
judgment of these officers ought not to 
be reversed and the grave interests of the 
people imperiled, by the admissions of 
persons not under oath and admitting 
their own misconduct. 

" The practice of admitting this kind of 
evidence originated in England. So far 
as it has been adopted in this country it 
has been without much discussion of the 
reasons on which it is founded. In Eng- 
land, as has been said, the vote was viva 
voce. The fact that the party voted and 
for whom was susceptible of easy and in- 
disputable proof by the record. The 
privilege of voting for members of par- 
liament was a franchise of considerable 
dignity, enjoyed by few. It commonly 
depended on the ownership of a freehold, 
the title to which did not, as with us, 
appear on public registries, but would be 
seriously endangered by admissions of 
the freeholder which disparaged it, An 
admission by the voter of his own want 
of qualification was, therefore, ordinarily 
an admission against his right to a spec- 
ial and rare franchise, and an admission 
which seriously imperiled his right to 
his real estate, an admission so strongly 
against the interest of the party making 
it that it would seldom be made unless 
it were true. It furnishes no analogy 
for a people who regard voting not as a 
privilege of a few, but as the right of 
all ; where the vote, instead of being viva 
voce, is studiously protected from pub- 
licity, and where such admissions, in- 
stead of having every probability in favor 
of their truth, may easily be made the 
means of accomplishing great injustice 
and fraud, without fear either of detec- 
tion or punishment. 

' ' It may be said that the principle of the 
secret ballot protects the voter from dis- 
closing how he voted, and, in the'absence 
of power to compel him to testify and 
furnish the best evidence, renders the 
resort to other evidence necessary. The 
committee are not prepared to admit 
that the policy which shields the vote of 
the citizen from being made known, 
without his consent, is of more impor- 
tance than an inquiry into the purity and 
result of the election itself. If it is, it 
cannot protect the illegal voter from dis- 



650 

result can be ascertained, independently of the defective record 
and return ; and, to ascertain the result, the ballots cast for repre- 
sentative, if properly preserved, will be recounted. 1 Before courts 
or legislative bodies can give weight to the results of recounts of 
ballots, there must be absolute proof that the ballot-boxes, con- 
taining such ballots, have been safely kept, and that the ballots 
are the identical ballots cast at the election ; and when these facts 
are established, beyond all reasonable doubt, full force and effect 
will be given to the developments of the recount. 3 When the 
written notice required for a recount by the aldermen of the votes 
cast in a ward is not given to the city clerk within the time pre- 
scribed by law the aldermen have no legal right to recount the 
votes. 3 A recount of votes by the aldermen after the time pre- 
scribed therefor by law is void, and an amendment of the return 
made as the result of such recount is invalid. 4 

§ 777. A statutory provision that the county court commissioners 
" shall, upon the demand of any candidate voted for, at such election, 
open and examine any one or more of the sealed packages of ballots, 
and recount the same," does not authorize more than one recount at 
the instance of the same candidate. 5 After the count of votes for 

closing how he voted. If it is, it would ters of pedigree and the like. But a 

be quite doubtful whether the same pol- man who is so anxious to conceal how he 

icy should not prevent the use of the voted as to refuse to disclose it on oath, 

machinery of the law to discover and even when the disclosure is demanded in 

make public the fact, in whatever way it the interest of public justice, and who is 

may be proved. It is the publicity of presumed to have voted fraudulently — 

the vote, not the interrogation of the for otherwise in most cases the inquiry 

voter in regard to it, that the secret bal- is of no consequence — would be quite as 

lot is designed to prevent. There would likely to have made false statements, on 

seem to be no need to resort to hearsay the subject, if he had made any. To 

evidence, on this ground, unless the permit such statements to be received 

voter has first been called and, being to overcome the judgment of the election 

interrogated, asserts his privilege and officers, who admit the vote publicly, in 

refuses to answer. Even in that case a the face of a challenge, and with the 

still more conclusive objection to hear- right to scrutinize the voter, would seem 

say evidence of this character is this : it to be exceedingly dangerous." 
is not at all likely to be either true or 

trustworthy. l Stimpson v. Breed, L. & K. 257. 

"The rule that admits secondary evi- 2 Acklen v. Darrall, 1 Ells. 124 ; Cook 
dence, when the best cannot be had, 9m Cutts 2 id. 243 ; Hudson v. Solo- 
only admits evidence which can be relied ->mr -inn -d i x> a c 
\ , , * . ■ mon, 19 Kan. 177 ; People v. Burden, 45 
on to prove the fact, as sworn copies ' r 

when an original is lost, or the testimony ^ a ^- *41. 

of a witness to the contents of a lost in- 3 Davis v. Murphy, L. & K. 177. 

strument Hearsay evidence is not ad- 4 Haskell e. Closson, id. 233. 

mitted in such cases, and is only admit- 5 ^ u .,, ^ - • na \*7 

, -, . , £ .% . 5 Chenowith v. Commissioners, 26 W. 

ted in cases when hearsay evidence is, 

in the ordinary experience of mankind, *a. *30« 

found to be generally correct, as in mat- 



651 

representative in congress, in the presence of United States super- 
visors, who remain with the ballot-box until the count is completed 
and the certificate made out, it is not competent for any state to pro- 
vide another board of canvassers, who may take possession of the 
ballot-box, exclude the federal officers, and secretly count the 
votes and declare a different result. 1 

§ 778. In Massachusetts the state canvassers have no power to 
recount the votes ; but the aldermen of cities have full power 
to recount votes, including those cast for sheriff and district attor- 
ney ; and under a statute authorizing ten or more qualified voters 
of a city to file " a statement in writing that they have reason to 
believe that the returns of the ward officers are erroneous, speci- 
fying wherein they deem them in error," a statement that the 
signers have reason to believe that the returns of the ward officers 
are erroneous in regard to certain officers mentioned is sufficient. 2 
It was provided by statute that a water commissioner should be 
chosen by ballot at the annual town meeting held for the election 
of town officers. Upon the report of a committee of citizens, 
appointed by the moderator to count the ballots, he announced 
the result and declared one of the candidates elected by a majority 
of one vote. A motion was thereupon made and carried that the 
votes be counted by a new committee. The moderator then 
appointed a new committee who recounted the ballots and reported 
that another person was elected by a majority of one vote, and 
the moderator so declared the vote, stating that it so appeared by 
the recount. No objection was made to this declaration. The 
ballots were not preserved, and it did not appear where the ballot- 
box was during the time that elapsed between the first declaration 
and the recount. It was held, on a petition for a writ of man- 
damus by the person declared to be elected on the recount, that 
he was entitled to the office, and that mandamus was the proper 
remedy to compel the other water commissioners to recognize, 
receive, and act with the petitioner. 3 

§ 779. Where votes for representative in the state legislature 
have, upon petition, been recounted by the board of aldermen, 
such recount must stand, unless it is shown that, in such recount, 

1 Dean v. Field, 1 Ells. 190. 3 Putnam v. Langley, 133 Mass. 204. 

2 Opinion of the Justices, 136 Mass. 
583. 



652 

clerical or other errors were made ; that there was carelessness 
or fraud ; or that some other cause existed, which, if it had existed 
in the case of ward or town officers, in the primary count, would 
have been sufficient for a recount ; and the votes will not be 
recounted by the house of representatives merely because the 
recount by the board of aldermen differed from the original count, 
and changed the originally declared result. 1 When votes cast in 
a ward, forming part of a representative district, were, in good 
faith, recounted by the aldermen, after the time prescribed by 
law, and such recount showed that the petitioner received a 
plurality of the votes in the district, instead of the sitting member, 
who had a plurality, according to the original return, the house, 
against the report of the majority of the committee of elections, 
ordered a recount of the votes for representative in the whole 
district. Upon such recount the petitioner was found to have 
been elected; and the seat was awarded to him. 2 The fact that 
the original declaration of the vote for representative in the state 
legislature, made by the warden, at the close of the polls, was 
erroneous, and that, thereupon, the ward officers immediately 
recounted the votes, finding seven more for the sitting member, 
and one less for the petitioner, than were declared and verified, 
is not a sufficient ground for a recount by the house of repre- 
sentatives. 3 

§ 780. The fact that the votes of a city, composing a part of a 
senatorial district, were recounted by the aldermen, upon peti- 
tion, and by the recount the originally declared result was changed, 
will not justify a recount, by the senate, of the votes cast in the 
towns, in the absence of ground for doubting the accuracy of the 
town returns. 4 A recount, by the state senate, of votes cast for 
senator was ordered, when the board of aldermen, of a city con- 
stituting a senatorial district, recounted the votes cast for senator, 
at the same time, and, in the same room, when and where they 
were recounting the votes cast for representative to the general 
court, the names of senator and representative being on the same 
general ticket, and no committee of the board, or single member 
thereof, counted all the votes cast for senator, but the votes were 
distributed, in parcels, to members of the board " acting by twos," 

1 O'Connor v. Locke, L. & B. 310. 3 Stimpson v. Breed, L. & R. 257. 

2 Haskell v. Closson, id. 233. 4 Collins v. Cogswell, id. 390. 



653 

and such members gave the result of their counting to the city 
clerk, who ascertained and declared the aggregate result, which 
was not verified by any member of the board. 1 When the votes 
of a town, as first counted, elected the petitioner, but a recount, 
giving him four less votes, elected the sitting member, the com- 
mittee, considering it probable that a mistake had been made, 
recounted the votes of the town. 2 

§ 781. Where the votes in a town were counted by the town 
clerk alone, during the election, until two-thirds of the whole were 
counted, and the remainder were counted, some by the clerk, and 
some by one of the selectmen, neither verifying the other's count, 
and a mistake of ten votes was admitted to have been made in the 
announcement of the vote for the petitioner, owing, as the clerk 
stated, to haste in making the announcement, it was held that, al- 
though no objection to the counting was made at the town meeting, 
the votes should be recounted by the house of representatives. 3 
Where, after the count of votes for representative, and upon the 
declaration of the result, a recount of those votes only was made 
by the selectmen, and an error found in the original count, exceed- 
ing, in amount, the plurality of the returned senator, the votes 
for senator were recounted. 4 Where the election for represent- 
ative was reported to have resulted in a tie, and in one town in 
the district one hundred and eighty votes were returned as cast for 
representative, while only one hundred and fifty -two names were 
checked on the voting list in the town, it was held that there was 
sufficient ground for making a recount of the votes. 5 Where the 
ballots of a town were parted into four different parcels, and each 
parcel was counted by a different person, the count being in no 
case verified, they were recounted by the house of represent- 
atives. 6 Where the result was declared a tie vote and an error, 
in the addition of votes for representative, was proved to have 
been made by taking the figure 11 for the figure 1 repeated, re- 
sulting in a difference of nine votes against the petitioner, a recount 
was had. 7 Where two-thirds of the votes cast for representative, 
at a town meeting, were counted by the clerk alone, during the 



1 Allen v. Crowley, L. & R. 368. 

2 Claflin v. Wood, id. 353. 

3 Baker v. Hunt, id. 378. 

4 Clapp v. Sherman, id. 307. 



5 Maxwell v. Vincent, L. & R. 225. 

6 Hillman v. Flanders, id. 338. 

7 Foster's case, id. 377. 



654 

time when the meeting, attended by one thousand citizens, was 
engaged in an angry contest, over the question of striking the 
clerk's name from the jury list, and such confusion prevailed that 
the moderator lost control of the meeting, and finally declared it 
dissolved, before the question could be settled, it was held by a 
majority of the committee (a minority dissenting) that the votes 
should not be recounted ; but the house, accepting the views of the 
minority, ordered the committee to recount the votes ; where- 
upon they found and reported that the original count was correct. 1 

§ 782. In the absence of evidence of fraud on the part of the 
selectmen, or of illegality in the manner of calling, holding, or 
conducting the town meeting, or in the manner of ascertaining 
the result, a recount, by the senate, will not be made, unless the 
petitioner shall show a reasonable ground for supposing that a 
mistake was made. 3 If a party object to the ballots, in opposition 
to the returns, he must clearly indicate the boxes to which he 
objects and the grounds of his objection. If fraud be charged, 
it must be pointed out. The returns of the election, made by the 
officers charged by law with the duty of conducting it, are to 
be received as true, until the contrary is shown. Every fair pre- 
sumption is to be made in their favor. A return cannot be 
assailed by vague generalities. Ballots will not be recounted, 
without specific charges of fraud or mistake. 3 An application to 
the house for an order to send for the ballot-boxes and recount 
the ballots will not be allowed, unless founded upon some proof 
sufficient at least to raise a presumption of mistake, irregularity, 
or fraud, in the original count. The mere suggestion of possible 
error will not be a sufficient ground for the allowance of the order. 4 
Such an application will not be granted where it appears that the 
applicant has taken no legal steps to obtain such recount within 
the time fixed by the statute. 5 

§ 783. In Massachusetts the right of the senate and house of 
representatives to go behind the returns and recount the votes 
will be exercised only upon satisfactory preliminary proof of such 
substantial facts, or well-grounded causes of suspicion, as would 

1 Monroe v. Curnmings, L. & K. 212. 4 Kline v. Myers, 1 Bart. 574; Carrigan 

2 Collins v. Cogswell, id. 390. v. Thayer, id. 576. 

3 Kneass' case, 2 Pars. 553 ; Thompson 5 Carrigan v. Thayer, id. 576. 
v. Ewing, 1 Brewst. 67. 



655 

induce a strong apprehension that fraud or mistake, prejudicial 
to the contestant, might appear upon such examination ; and, in 
the absence of such preliminary proof, the return of the city and 
town officials, as sworn officers, should stand as correct. But the 
mere allegation that the contestant and others have strong reasons 
for believing that material errors were made, in the return of 
votes, the correction of which would change the result, and that 
the contestant was elected, and a count of votes would so show, 
and the fact that the ballots cast at a subsequent municipal elec- 
tion, in the same district, were counted by the same persons 
who counted the votes for councillor, and in several cases errors 
were found in such count, are insufficient reasons for a recount of 
votes for councillor. 1 Yotes will not be recounted merely because 
the plurality is small. 2 The mere fact that the aggregate vote 
returned for governor in a senatorial district exceeds by two hun- 
dred and sixty-three the aggregate vote returned for senator will 
not justify a recount of the ballots for senator. 3 The fact. that the 
sitting member was returned as elected by only eleven plurality, 
that, as the votes were first announced, in one of the towns in the 
district, he had but seven plurality, and that, owing to a scarcity 
of printed ballots, in that town, many of the votes for the petitioner 
were written in lead pencil, are not sufficient grounds for a recount 
of the votes by the house of representatives. 4 

§ 784. The facts that a person, who was not an election officer, 
counted the votes, after they had been counted by one of the 
selectmen, the others being present, and the result of the count 
being the same in both cases, and that the petitioner received a 
smaller number of votes than other candidates of his party for 
other offices, on the same ticket, are not sufficient grounds for a 
recount of votes by the house of representatives of Massachusetts. 5 
The facts that the sitting member was returned as elected by a 
plurality of only six votes, and that, in one town in the district, 
the ballots were counted by two of the voters, invited by the 
selectmen to perform that service, no objection being made, 
during the meeting, to that mode of counting, will not justify 

1 Eice v. Welch, L. & E. 128. 3 Clapp v. Sherman, L. & E. 307. 

2 McMahan v. McGeough, id. 370; 4 Morse v. Lonergan, id. 288. 

Austin v. Swort, id. 189 ; Burt v. Babbit, 5 McManus v, Fairbanks, id, 215. 
id. 174. 



656 

a recount of the votes. 1 The facts that the votes for representa- 
tive were counted by a number of ward officers, and the count of 
one officer was not always verified by the others, and that, at the 
subsequent city election, the same officers made several gross 
errors in counting votes, will not, if proved, be sufficient ground 
for a recount of the votes by the house of representatives. 2 When 
all the votes were counted by the selectmen, but reputable persons, 
not selectmen, and not sworn, were permitted to assist them, the 
practice was disapproved, but a recount was refused. 3 The facts 
that, at the city election immediately following the election of 
representative, a recount of votes for certain city officers was made 
by the aldermen, and showed that few, if any, of the returns made 
by the ward officers, at such city election, were correct, and that, 
at the election of representative, in some cases, partial counts of 
votes were made by one ward officer, and were not verified by any 
of his associates, are not sufficient grounds for a recount of votes 
for representative. 4 

§ 785| In Massachusetts the fact that, on a recount by the 
aldermen, of votes for member of congress, voted for upon the 
same ballot with candidates for the state legislature, it was dis- 
covered that two rolls of ballots, each marked as containing one 
hundred straight tickets, actually contained one only eighty-eight, 
and the other only seventy-eight ballots, is not sufficient ground 
for a recount of votes by the house of representatives of the state, 
when the plurality for the sitting member is one hundred and 
thirty-four, and there is no evidence from which the house can 
infer that other mistakes were probably made, the correction of 
which would change the declared result of the election. 5 The 
fact that the votes in a town were counted by only one of the 
selectmen, and the coincidence that, although there were several 
split tickets in the field, the vote for each of the two candidates 
for senator was returned as exactly the same as for each of the 
two candidates for governor, will not, in the absence of evidence 
of illegality, fraud, or error, justify a recount of the votes for 
senator. 6 When the votes for representative were counted by the 

1 State c. Green, L. & E. 226. 4 Scribner v. Keyes, L. & E. 296. 

2 Prescott v. Crossman, id. 303 ; Stimp- 5 Taylor v. Carney, id. 228. 
son v. Breed, id. 257. 6 Graves v. Edson, id. 196. 

3 Harris v. Eichardson, id. 372. 



657 

town clerk and one selectman, each verifying the count of the 
other, and, owing to the irregularity of permitting voters to deposit 
ballots for representative in the proper box, after depositing such 
ballots in the box used for ballots for other officers, it was impos- 
sible to ascertain the true result of the election, by a recount, the 
votes were not recounted by the house of representatives. 1 

§ 786. When the statute expressly provides for the preservation 
of the ballots, by a particular officer, for the specific purpose of 
determining the right to a public office, the ballots are the highest 
and best evidence for that purpose, and, if preserved as the law 
requires, are the only conclusive evidence of the result of the 
election ; the certified statement and declaration of the officers of 
election are prima facie evidence only. 2 Under a statute requir- 
ing the inspector to string the ballots on a cord, or thread, and 
return them, with the poll-list and tally-paper, to the county clerk, 
to be kept by him, for at least six months, it has been held that, 
in an action brought to try the right to an office, the ballots cast, 
in any precinct, and returned, with the poll-list and tally-paper, 
to the county clerk, are better evidence of the number of votes cast 
at the precinct, and for whom they were cast, than the tally -list 
made by the officers of the election ; and that the presumption of 
law is that the ballots were all returned to the county clerk, and 
that they have not been mutilated ; and that, if such be not the 
case, it should be shown by evidence. 3 But afterwards, under the 
same statute, it was held that, if there were evidence tending to 
show that ballots were not sealed up, after being counted by the 
board of canvassers, or that packages of ballots were opened and 
changed, after they were received by the clerk, the ballots, on a 
recount, would not be the best evidence. 4 After proof is made 
that the box, containing the ballots, has not been tampered with, 
and that the requirements of the law for its custody have been 
complied with, it is proper for the court to order that the box be 
opened, and the ballots counted, and the result shown by such 
counting may properly be declared by the judgment of the court. 5 

§ 787. In a contest of the title of a person to an office to which 
he has been legally declared to have been elected, the returns of 

1 Ames v. Beebe, L. &R. 346. 3 People v. Holden, 28 Kan. 123. 

2 Eeynolds v. State, 61 Ind. 392 ; Hud- 4 People v. Freund, 45 id. 241. 

son v. Solomons, 19 Kan. 177. 5 Duson v. Thompson, 32 La. An. 861, 

42 



658 

the election boards are to be received as prima facie true. In 
order to overcome this evidence, by a recount of the ballots, the 
contestant must affirmatively prove that the ballots had not 
been tampered with and that they remained in the same con- 
dition in which they were when delivered into the proper 
custody by the judges of election. If this be proven to the satis- 
faction of the court, the result, shown by the recount, will be 
adopted, instead of that shown by the returns. 1 A recount of the 
ballots will not be permitted, unless it appear affirmatively that 
they have been securely kept and have not been exposed, and that 
there has been no opportunity to tamper with them. 2 If the law 
provide an officer, whose duty it is to hold possession of the bal- 
lot-boxes and ballots, after the polls are closed, no recount of the 
ballots will be permitted, unless it shall be affirmatively shown that 
the ballot-boxes and ballots remained in the custody of such officer 
during the interval between the election and the recount. 3 An 
impartial public count of the ballots, by sworn officers, made at 
the close of the polls, is better evidence of what the ballot-box 
then contained than a subsequent count, made after a long ex- 
posure of the boxes to the tampering of dishonest partisans. 4 
And the house of representatives of the United States is not 
inclined to set aside official and formal counts, made with all the 
safeguards required by law, on evidence only of subsequent in- 
formal and unofficial counts, without such safeguards. On principle 
it would seem that if a recount can be admissible, in any case, in 
the absence of fraud in the official count, it should be permitted 
only when the ballot-boxes had been so kept as to be conclusive 
of the identity of the ballots, and, when the subsequent count was 
made, with safeguards equivalent to those provided by law. In the 
absence of either of these conditions the proof would be less 
reliable and therefore insufficient. 5 

§ 788. Under a statute making it the duty of the ward officers 
of election in cities, after the canvass of the votes, to cause the 
ballots to be secured in an envelope, in open ward meeting, and 
sealed with a seal provided for the purpose, and to transmit the 
envelope, duly indorsed with the contents, forthwith to the city 

1 Coghlan v. Beard, 65 Cal. 58. 4 Kline v. Myers, 1 Bart. 574. 

2 Abbott v. Frost, Smith, 594. 5 Gooding v. Wilson, Smith, 79. 

3 lb. 



659 

clerk, by the constable who attended the meeting, or by one of 
the ward officers, other than the clerk, it was held that, when the 
ballots, after being sealed up, were placed in the hands of a police- 
man, and were, by him, delivered to a night-watchman, who 
retained them until seven o'clock the next morning, and then 
returned them to the policeman, who, accompanied by the ward 
clerk, in violation of the law, delivered them to the city clerk, the 
returns based upon a subsequent count of such votes were illegal 
and should be rejected. 1 Where the votes were counted, from 
time to time, during the election, by the warden, who did not 
submit every parcel of votes to the clerk for recount, but left it 
with the clerk to enter upon the record the number counted in 
the different parcels, and, after the close of the polls, carried the 
votes to his home, leaving them, in the presence of several per- 
sons, for ten minutes, during his absence, and subsequently tied 
them up in bundles, and placed them in a basket, in a store, where 
he left them twenty minutes, and afterwards carried them to his 
home again, and then, in the presence of some of the ward officers 
and other persons, recounted the votes for representative in the 
state legislature, changing the result, it was held that, although a 
recount by the committee showed the same result as the second 
count of the warden, the first count and the declaration of the 
result at the polls must stand. 2 If it appear that the ballots, 
transmitted by the precinct officers to the county clerk, were not 
sealed up, as required by law, they will not constitute better evi- 
dence of the result than the precinct return. 3 t 

§ 789. In a case decided by the supreme court of Illinois, after 
the votes had been canvassed, the result announced, and the 
ballots deposited in the custody of the officer designated by law, 
the ballot-box was opened by that officer, and other persons, 
including the contestant, in the absence of the contestee, and the 
ballots were removed, unstrung, counted, restrung, and returned 
to the boxes. It was held, in a contest of the election, that, 
although the persons, who so handled the ballots, testified that 
they had no knowledge of any alteration of the ballots, and there 
was no evidence of such alteration, a subsequent canvass or count 

1 Abbott v. Frost, Smith, 594. 8 People v. Burden, 45 Cal. 241. 

2 Bean v. Tucker, L. & E. 89. 



660 

of the ballots could not be admitted to contradict the result shown 
by the returns, poll-books, and tally-lists. 1 

§ 790. The state law contained the following provisions : " All 
the ballots counted by the judges of election shall, after being 
read, be strung upon a strong thread or twine, in the order in 
which they have* been read, and shall then be carefully enveloped 
and sealed up with sealing-wax, by the judges, who shall direct 
the same, indorsed with the name of the district voted, to the 
officer to whom, by law, they are required to return the poll-books, 
and shall be delivered, together with the poll-books, to such 
officer, who shall carefully preserve said ballots, for six (6) months, 
and, at the expiration of that time, shall destroy them, by burning, 
without the package being previously opened : Provided, If any 
contest of election shall be pending, at such time, in which such 
ballots may be required as evidence, the same shall not be de- 
stroyed till such contest is finally determined. 3 In all cases of 
contested elections, the parties contesting the same shall have 
the right to have the said package of ballots opened, and said 
ballots referred to by witnesses, for the purpose of such contest. 
But said ballots shall only be so examined and referred to in the 
presence of the officer having the custody thereof." 3 The supreme 
court of Minnesota held that the provisions requiring the judges to 
envelope and seal up the ballots were merely directory, that, upon 
clear and satisfactory proof that they had been kept intact and 
inviolate, in the same condition as when counted, they were admis- 
sible in evidence, although not enveloped and sealed up, in the 
manner required by the statute, and that sufficient proof as to the 
condition of the ballots was afforded by the following facts : After 
the judges of election had canvassed the votes they strung the 
ballots, and placed them in the boxes, sealed the apertures, and 
locked them, and placed the boxes and keys in the custody of one 
of the judges of election, in whose custody they remained until 
delivered to the city clerk ; within twenty-four hours after the clerk 
received the ballots, he sealed them up in the manner prescribed 
by the statute, and deposited them in the vault of the city comp- 
troller, where they remained intact until opened in court. While 
they remained unsealed in his office, their situation excluded any 

1 Kingery v. Berry, 94 111. 515. 3 Gen. Stat. Minn.' 1878, c. 1, s. 89. 

2 Gen. Stat. Minn. 1878, c. 1, s. 88. 



reasonable probability that they had been tampered with ; the 
boxes were not all delivered by the judges in person, or received 
by the clerks in person ; but the situation and condition of those 
otherwise delivered was satisfactorily explained. 1 

§ 791. When the petitioner was declared elected, upon the ward 
returns, by a plurality of five votes, and, upon a recount by the 
aldermen, the sitting member was returned, by a plurality of five 
votes, and the committee, in recounting the votes, were unable to 
ascertain how the aldermen reached that result, and it was proved 
that there had been fraud and irregularity in the election, so that 
it was impossible to determine who had received a plurality of 
legal votes, the election was declared void. 3 

§ 792. The legislative power is incapable of delegation, either 
to public officers, or to the electors. In some cases it has been 
held that the federal constitution guaranties representative gov- 
ernments to the states, and interdicts the exercise of legislative 
power by the people. The grant of the legislative power to the 
legislature, by a state constitution, excludes, by implication, the 
power to delegate the same to the other bodies, or to the electors. 3 

Constitutions derive their force, not from the conventions which 
frame them, but from the people who ratify them ; and the intent 
to be ascertained is that of the people, who adopt constitutions 
according to the words of the text in their reasonable inter- 
pretation, and not according to the interpretation of particular 
individuals. 4 When a law is plain and unambiguous, whether 
it is expressed in general or limited terms, there is no room for 
construction. Courts are not at liberty to overlook the meaning 
clearly expressed on the face of the statute, and seek elsewhere 
for possible, or probable, meanings. 5 An act providing that, " all 

■ O'Gorman v. Kichter, 31 Minn. 25. 1 Story Const. 392, note ; Cooley, Const. 

2 Splaine v. McGahey, L. &. R. 393. Lim. 66. 

3 Rice v. Foster, 4 Harrington (Del.) 5 Beardstown v. Virginia, 76 111. 34; 
479 ; Railway Co. v. Commissioners, 1 Cooley, Const. Lim. 55 ; McCluskey v. 
Ohio St. 84 ; Parker v. Commonwealth, 6 Cromwell, 11 N. Y. 601 ; Newell v. Peo- 
Penn. St. 507; Geebrick-y. State, 5 Iowa, pie, 3 Seld. 97 ; Rickman v. Carstairs, 5 
491 ; State v. Parker, 26 Verm. 356 ; State B. & A. 129 ; Waller <o. Harris, 20 Wend. 
v. Noyes, 10 Foster (N. H.) 279 ; State v. 561 ; People v. Purdy, 2 Hill, 35 ; Denn 
O'Neill, 24 Wis. 149; Hammond?. v. Reid, 10 Pet. 524 ; Spragins v. Hough- 
Haynes, 25 Md. 541 ; Burlington v. Ben- ton, 2 Scam. 377 ; Hills v. Chicago, 50 
sley, 94 U. S. 310. See ante, chapter 12. 111. 86 ; Brown v. Davis, 1 Nev, 409 ; 

4 Beardstown v. Virginia, 76 111. 34; United States v. Fisher, 2 Cr. 358; Nol- 



662 

provisions of law in force regulating elections, so far as the same 
are applicable, and not inconsistent with the provisions of this 
act, shall apply to the election of city officers, by the voters of 
this city," 1 applies to each municipal election of the city, so far 
as practicable, the provisions of the general election laws of the 
state, in force at the time when the election is held, and not merely 
those in force at the time of the passage of the act. 3 The words 
" illegal and prohibited acts in reference to elections " 3 mean not 
all acts which are prohibited by the election law, but such acts 
performed to affect elections or in connection with or reference to 
them. 4 The words " exercising the right of suffrage," in the nine- 
teenth section of the act of May 31, 1870, may be construed to 
mean voting, without placing that section in conflict with the fourth 
section of the same act, provided the penalties prescribed in the 
nineteenth section be regarded as applicable to offences committed 
at elections for representatives in congress, and those prescribed 
in the fourth section to such as are committed at state, county, 
and municipal elections. 5 An act organizing a new county, which 
withholds from its inhabitants the right to vote for judges and 
senators, is unconstitutional and void. 6 

ley v. Beck, 8 B. & C. 160 ; Branding v. 4 Brockville case, 32 U. C. Q. B. 132. 

Barrington, 6 id. 467 ; King v. Stoke, 5 United States v. Souders, 2 Abb. U. 

Damerel, 7 id. 563. S. 456. 

1 Stat. Cal. 1863, p. 428. c People v. Maynard, 15 Mich. 471 ; 

2 Kirk v. Khoads, 46 Cal. 398. Cooley, Const. Lim. 616 ; Lenning v. 

3 34 Vict. c. 3, s. 3. Carpenter, 20 N. Y. 447. 



CHAPTEE XXXV. 



STATUTORY CONTESTS. 



Secs. 
1. The tribunal . . . 793-797 

(1) Qualifications ; organization ; 

oath .... 798,799 

(2) Jurisdiction, powers, 





duties . . . 800-813 




(3) Quorum . . . .814 


2. 


Parties; relators . . 815-817 


3. 


Petition and notice, or affi- 




davit .... 818-833 




(1) Time, place, manner, and >- 




proof of service . . 834-838 



Secs. 
(2) Defects, irregularities, amend- 
ments . . . 839,840 

4. Answer ... . 841 

5. Reply 842 

6. Interlocutory proceedings . 843 

7. Trial ; evidence ; verdict ; judg- 

ment .... 844-846 

8. Appeal ; error ; supplementary 

proceedings . . . 847-853 



§ 793. In the absence of constitutional inhibitions, the legisla- 
ture has power to declare the certificate of election conclusive, in 
all cases. It may or may not authorize a contest. If a contest be 
authorized, the mode of contest and of trial will rest absolutely in 
the legislative discretion. The legislature has full power to de- 
termine what tribunal shall hear and determine the contest, and 
may confer the jurisdiction upon one of the ordinary judicial tri- 
bunals, or upon a judge thereof, or upon any other officer, and 
may, or may not, authorize a trial by jury. 1 An incumbent hold- 
ing office, under the decision of such tribunal, cannot be ousted 
by an information in the nature of a quo warranto. A statutory 
provision for the contest of an election is not invalid because it 
fails to make the state a party to the proceedings. The legisla- 
ture represents the state and may waive its rights, and authorize 
proceedings, in which the public has an interest, without making 
the state a party thereto. 2 It is competent for the legislature to 
constitute a tribunal, and prescribe a course of procedure, for the 
trial of a contested election case, after the election is held. 3 

§ 794. There is no constitutional provision, or fundamental 
principle, of our government, relating to the supposed independ- 
ence, or equality, of the legislative, executive, and judicial depart- 



1 Moulton v. Eeid, 54 Ala. 320. 

2 State v. Lewis, 51 Conn. 113. 



State v. Johnson, 17 Ark. 407. 



663 



664: 

ments of the government, which makes each department the judge 
of the elections, or qualifications, of its own officers. The power 
to adjudicate contested election cases, in any or all departments, 
is to be exercised by that tribunal on which it is conferred by the 
constitution. 1 Constitutional provisions, empowering courts to 
issue writs of quo warranto, are framed, not to perpetuate the 
mere form of the proceeding, but to vest in the courts the sub- 
stance of the jurisdiction; and it is competent for the legislature 
to abolish the technical writ itself, and to substitute a civil action 
in its place. 2 The right to contest an election, being given by one 
legislature, may be taken away by another ; it is not a vested 
right. The commencement of a contest, under one statute, will 
not prevent its termination under another statute. 3 Under a con- 
stitutional provision that " the judicial power of the state shall be 
vested in a supreme court, district courts, probate courts, justices 
of the peace, and such other courts, inferior to the supreme court, 
as may be provided by law," 4 it was held to be competent for the 
legislature to constitute a court, for the trial of contested elections, 
consisting of the probate judge and two disinterested persons 
selected by him. 5 

§ 795. A statute, authorizing a judge of a state court to adju- 
dicate a contested election case, is not in conflict with article seven 
of the amendments of the federal constitution, nor with a state 
constitution, declaring that " the right of trial by jury, except 
where it is otherwise provided in this constitution, shall remain 
inviolate." 6 A statutory provision that cases of contested elec- 
tions " shall be heard and tried, by the district court of the proper 
county, in the manner that civil actions are tried by the court," 7 
empowers the court to try such cases without a jury. 8 The issues 

1 Attorney-General v. Barstow, 4 "Wis. subject only to inpeachment and to ap- 
561. In this case M. H. Carpenter, after- peal to the people." 
wards U. S. senator, argued, at great 2 Alexander v. McKenzie, 2 S. C. 81. 
length, in support of the proposition 3 Gilliland v. Schuyler, 9 Kan. 569. 
that " the three departments of the state 4 Const. Kan. 1859, art. 3, s. 1. 
government, the legislative, executive, 5 Steele v. Martin, 6 Kan. 430. 
and judicial, are equal, co-ordinate, and 6 Const. Ga 1877, art. 6, s. 18 ; Free- 
independent of each other; and that man v. State, 72 Ga. 812; Govan v. Jack- 
each department must be, and is, the ulti- son, 32 Ark. 553; Ewing v. Filley, 43 
mate judge of the election and qualifi- Penn. St. 384. 

cationsof its own member, or members; 7 Gen. Stat. Minn. 1878, c. 1, s. 52. 

B Newton v. Newell, 26 Minn. 529. 



665 

of fact, in an action to try the title to an office, under the New 
York code, are, in the first instance, triable by the court ; but the 
court may order the whole issue, or any specific question of fact 
involved therein, to be tried by a jury. An application for a jury, 
made by the defendant, after the attorney-general has rested, will 
be too late. 1 The refusal of the circuit court to grant a jury trial 
of a contested election case, upon an appeal from the board of 
county commissioners, under the statute of Indiana, is not error. 3 
In Mississippi the statutory contest, in the circuit court, is pro- 
vided exclusively for the cases of elections prescribed by the 
general law, and is not applicable to those of officers of towns, 
whose election is provided for by charter. 3 Statutes, regulating 
contests of elections of officers, are not per se applicable to elec- 
tions held for the location of county seats. 4 

§ 796. It was provided, by an " act to regulate proceedings in 
contestations between persons claiming a judicial office," 5 that, 
" in any case in which a person may have been appointed to the 
office of judge of any court of this state, and shall have been con- 
firmed by the senate, and commissioned thereto, * such com- 
mission shall be prima facie proof of the right of such person to 
immediately hold and exercise such office," and that, if any person, 
being an incumbent of such office, shall refuse to vacate the same, 
and turn the same over to the person so commissioned, he shall 
have the right to proceed, by rule, before the court of competent 
jurisdiction, to have himself declared to be entitled to such office, 
and to be inducted therein. Such rule shall be taken contradic- 
torily with such incumbent, and shall be made returnable within 
twenty-four hours, and shall be tried immediately, without jury, 
and by preference over all matter, or causes, depending in such 
court, * and the judgment thereon shall be signed the same 
day of rendition." It was also provided that an appeal, if taken, 
should be applied for within one day after the rendition of the 
judgment, and be made returnable to the supreme court within 
two days ; and that the appeal should have preference over all 
other business, in the supreme court, and the judgment thereon 
be final, after the expiration of one day. It was held, by the 

People v. Eailroad Co. 55 Barb. 344. "Leigh v. State, 69 Ala. 261. 

2 Corey v. Lugar, 62 Iud. 60. 5 Stat. La. Jan. 15, 1873. 

3 Easly v. Badenhausen, 59 Miss. 580. 



666 

supreme court of the United States, that proceedings under this 
act, which resulted in a judgment adverse to the title of the plain- 
tiff in error to a certain judicial office, did not involve a violation 
of that clause, of the fourteenth amendment of the constitution of 
the United States, which declares that no state shall deprive any 
person of life, liberty, or property without due process of law. 1 

§ 797. Under a statute declaring that the powers and authority 
of municipal councils shall extend to " the making rules and 
regulations for trying contested elections of members of their own 
body, and the trying of the said contested elections," 2 the superior 
court of Montreal held that a municipal council had no right to 
delegate, to a committee, the power of hearing witnesses, in the 
case of a contested election, and that the decision given in a case, 
in which the testimony was so taken, was void. 3 But in the same 
case, on appeal, the court of queen's bench of Lower Canada, 
reversing the judgment of the superior court, held that the munic- 
ipal council had the right to delegate, to a committee, the power 
to investigate the facts, in a contested election case, and that a 
resolution adopted by the council, on the report of the committee, 
annulling the election of a councillor, and declaring the contestant 
duly elected, was within the authority of the council and valid. 4 

§ 798. A constitutional provision, that " no judge shall sit in 
any case, wherein he may be interested," 5 disqualifies a judge for 
the trial of a contest of the title to his own office. 6 

'Kennard v. Louisiana, 92 U. S. 480. expired, shall meet at such place as shall 

2 Stat. Can. 10 & 11 Vict. c. 7, s. 33. be le gally appointed, between the hours 

. „. . o t n -d one °f two an( ^ f° ur i n the afternoon, on the 

J Giroux v. Bmet, 3L.G.K 20b. firgt Monday of April next fo ii owing eac h 

4 Binet v. Giroux, 4 id. 177. and every election, to be held in pursu- 

5 Const. Md. 1864, art. 4, s. 7. ance of this act, and shall then and there 
6 Magruder , y. Swann 25 Md. 173. receive the said return of the commission- 

,.,,,', . ers elect, and shall forthwith proceed to 

In a case decided by the supreme court examine ^ same and to ^ and de _ 

of Pennsylvania, Commonwealth v. Mc- termine thereon ; and, for that purpose, 

Closkey, 2 Rawle, 369, the question was the said commissioners, or a majority of 

whether township commissioners could them > sha11 be judges of the said election, 

. _ _ ,, . , , . -, and shall have full power and authority 

act as judges of their own election, under fcQ approye thereof ^ or to set aside ^ 

certain provisions of the act of mcorpo- same, and to order new elections, as the 
ration. These provisions were in the case may require, to be held in the man- 
following words • ner h ere i n before directed, and at such 

times as shall be by them appointed, of 

" Sec. 3. The three persons who shall, which they shall give at least six days 

at every subsequent election, have the previous notice, by hand-bills, posted up 

highest number of votes for the said office i n a t least ten of the most public places 

of commissioners, together with the six i n the said township. Sec. 5. Every 

commissioners whose time shall not have commissioner, who shall be elected and 



667 



§ 799. Where the members of a court, constituted for the trial 
of a contested election case, met, in pursuance of the notice pre- 
scribed by law, and, after the consideration of certain preliminary 
questions connected with the case to be tried, adjourned until the 
next day, without taking the oath of office, and without formally 
calling the case, for the trial of which they were convened, but 



returned, and whose election shall be 
approved in manner aforesaid, shall, be- 
fore he enters on the exercise of his said 
office, be sworn, or affirmed, before some 
justice of the peace of the county, well 
and faithfully to execute the office of 
commissioner of the said township ; and 
shall, thereupon, without any further or 
other commission, enter upon the duties 
thereof, and hold and exercise the same, 
for the term for which he shall have been 
elected, as aforesaid." 

Three of the five judges were of the 
opinion that these statutory provisions 
did not authorize the newly elected com- 
missioners to act as judges of their own 
elections. But the judge who delivered 
their judgment said : 

" If the legislature should pass a law, 
in plain, unequivocal, and explicit terms, 
within the scope of their constitutional 
power, I know of no authority in this 
government to pronounce such an act 
void merely because, in the opinion of 
the judicial tribunals, it was contrary to 
the principles of natural justice ; for 
this would be vesting in the court a lati- 
tudinarian authority, which might be 
abused, and would necessarily lead to 
collisions between the legislative and 
judicial departments, dangerous to the 
well-being of society, or at least not in 
harmony with our ideas of the structure 
of natural government. Justice is regu- 
lated by no certain or fixed standard ; so 
that the purest and ablest minds might 
sometimes differ with respect to it. Be- 
sides, necessity dispenses with those 
general principles, and the legislature 
must be the judges when the necessity 
exists, when the exigencies of society 
require the investment of such extraordi- 
nary powers." 

Two of the five judges dissented. Chief 
Justice Gibson said : 

" I regret that I am compelled to dis- 
sent from the opinion of the majority. 
The objection to what appears to me to be 



the obvious and natural construction of 
the third and fifth sections of the act of 
incorporation, is, that it would make the 
commissioners elect judges in their 
proper cause. Such a result is forbidden 
by no clause in the constitution ; but 
there are various dicta in the books, to 
the effect that statutes, which are against 
reason and natural justice, are void. 
Of late, however, the matter is treated 
more soberly, and it is now considered, 
that no statute, the meaning of which 
is clearly and unequivocally expressed, 
is void, either in its direct or its col- 
lateral effect ; in so much that its effect 
cannot be questioned, except on a rea- 
sonable presumption, arising from the 
generality of the words, that the actual 
meaning is different from the literal 
purport. 1 Comm. 91, note. Such was 
the case of the legislative grant to try 
all causes within the manor of Dale ; 
the words of which might be reasonably 
satisfied, without authorizing the judge 
to try his own cause. Is there, then, an 
ambiguity, arising from the generality 
of the words, in the sections under con- 
sideration?" 

He was of the opinion that no such 
ambiguity existed. 

Judge Huston was also of the opinion 
that the statute made the newly elected 
commissioners judges of their election, 
and that the law was not void. On the 
latter point he said : 

' ' The phrase ' judge in his own case ' 
seems to be often totally misunderstood. 
As to right to property a man cannot be 
a judge in his own cause. As to political 
rights the phrase cannot, perhaps, apply; 
the saying is seldom true. * When a 
right to an elective office is questioned, 
two rights are questioned, that of the per- 
son elected, and those of the electors. 
If the inhabitants of a district elect a 
man, to whom they confide the power of 
taxing and applying the taxes, is it 
strange they should confide to the same 
person the power of judging, for the 
same period, of their right to vote ?" 



668 

took the proper oath, on the next day, before proceeding to try 
the case, it was held that the validity of the subsequent proceed- 
ings was not affected by the adjournment, nor by the delay in 
calling the case or taking the oath. 1 

§ 800. Under an amendment of a city charter, providing that 
" the board of councilmen shall be the final judges of the election 
returns, and of the validity of elections and qualifications of its 
own members," 3 the jurisdiction having been exercised, before the 
amendment, by a court of law, the board of councilmen have juris- 
diction of the case of an election which occurred before the enact- 
ment of the amendatory law. 3 Under a statutory provision that, 
" in no case shall the validity of any election be inquired into, 
beyond the one last had, and upon which the proceeding is based," 4 
it was decided by the supreme court of Kansas, that when, at the 
first election held for the location of a county seat, no place 
received a majority of all the votes cast, and a second election 
was held, pursuant to law, it was not competent- for the court to 
inquire into the validity of the first election. 5 Under a statute 
creating a tribunal for the trial of contested election cases, com- 
posed of executive officers of the state, and providing that "when 
the person returned is found not to have been legally qualified to 
receive the office, at the time of his election, a new election shall 
be ordered," 6 and that "its decision, when made, shall be final 
and conclusive," it has been held, by the supreme court of Ken- 
tucky, that the tribunal, so constituted, has no power to make an 
original adjudication of the question whether a person, returned 
as elected, has, by a violation of the constitutional provisions 
relating to duelling, been deprived of the right to hold office, or, 
upon its own finding of guilt, to adjudge him not to be entitled to 
the office ; that such judicial powers cannot be conferred upon a 
tribunal composed of executive officers, without a violation of that 
clause 7 of the constitution of Kentucky, which provides that, " the 
powers of the government of the state of Kentucky shall be divided 
into three distinct departments, and each of them be confided to 
a separate body of magistracy." 8 

1 Steele v. Martin, 6 Kan. 430. 6 State «. Woodford, 15 Kan. 500. 

2 Stat. Conn. 1873, p. 237. 6 Rev. Stat. Ky. 1860, 444. 
3 Selleck v. South Norwalk, 40 Conn. 7 Const. Ky. 1850, art. 1, s. 1. 

359. 8 Commonwealth v. Jones, 10 Bush, 

4 Laws Kan. 1872, 271. 725. 



669 

§ 801. Under statutes authorizing a board of canvassers to issue 
certificates of election, and constituting a special tribunal for the 
trial of contested election cases, the decision of such tribunal is 
final and conclusive on all questions both of law and of fact. The 
courts cannot adjudicate such questions ; but they may, by man- 
damus, compel the canvassing board, or the tribunal created for 
the trial of contested cases, to perform the functions assigned by 
law, in case of refusal to act without good cause. 1 A statutory 
provision requiring a court to decide a contested election case, 
" within the next term," is merely directory. Jurisdiction of the 
case, once acquired, will not be lost by the inability of the court 
to decide the case within the next term. The case will not die 
with the term. 2 A city charter contained the following provision : 
" If any municipal election shall be contested, in the city of Mobile, 
it shall be before the judge of the circuit court of the Mobile dis- 
trict, or judge of the city court of Mobile. Testimony may be 
taken by a justice of the peace, or before a commissioner appointed 
by the judge trying the cause, for that purpose, or he may cause 
the witnesses to come before him and depose in the case." 3 It 
was held, by the supreme court of Alabama, that, although these 
provisions were very general, in their terms, they clearly conferred 
upon the tribunals named jurisdiction of the contests of municipal 
elections, and that everything necessary to render the exercise of 
the jurisdiction effectual was granted by implication. 4 In cases 
of contested elections the courts do not act as boards of can- 
vassers ; but their duties are to examine into the existence of such 
specified frauds and irregularities as would nullify the results 
reached by the canvassers. The powers of the court are judicial. 5 

§ 802. The election law of Virginia contained the following 
section : " The returns of elections of county, corporation, and 
township officers, elected under this act, shall be subject to the 
inquiry, determination, and judgment of the respective county 
and corporation courts, or of the county court, in case the elec- 
tion was for a county and city (or town), upon complaint of fifteen, 
or more, of the qualified voters of the county, corporation, district, 

batman v. Megowan, 1 Mete. (Ky.) 3 Stat. Ala. 1865-6, p. 208. 

533. 4 Moulton v. Eeid, 54 Ala. 320. 

2 Stevenson v. Lawrence, 8 Brewst. 5 Kneass' case, 2 Pars. 553. 
126. 



670. 

or township, when the officer is elected by a district or township, 
of an undue election, or false return, two of whom shall take and 
subscribe an oath, or affirmation, that the facts, set forth in such 
complaint, are true, to the best of their knowledge and belief ; 
and the said courts shall, in judging of said elections, proceed 
upon the merits thereof, and shall determine finally concerning 
the same, according to the constitution and laws of this common- 
wealth ; and such complaint shall not be valid, or regarded by the 
court, unless the same shall have been filed within ten days after 
the election, in the clerk's office of the proper court." 1 The 
supreme court of the state held that, under this statute, the county 
or corporation court had jurisdiction and authority to decide, in 
the case of a contested election, that there had been no valid elec- 
tion, and to declare a vacancy, to be filled in the manner provided 
by law ; that the scope of the investigation, before the court, was 
not restricted to a mere examination of the returns, or to cases 
of contests between competing candidates, but reached back of the 
returns to the merits of the case, and applied equally to cases in 
which there was but one candidate, and to those in which there 
were several ; and that, although a person voted for had received 
the return, and had qualified and entered upon the discharge of 
the duties of his office, the court had power to declare the election 
invalid and to direct another to be held. 2 

§ 803. The constitution of the state of Kentucky declares that 
" all elections shall be free and equal." 3 The duties and powers 
of the board created by law, for the trial of contested election 
cases, were defined in the following statute : " When it shall ap- 
pear that the candidates receiving the highest number of votes 
have received an equal number, the right to the office shall be 
determined by lot, under the direction of the board.. When the 
person returned is found not to have been legally qualified to re- 
ceive the office, at the time of his election, a new election shall be 
ordered. When another than the person returned shall be found 
to have received the highest number of legal votes given, such other 
shall be adjudged to be the person elected and entitled to the office." 4 
The supreme court held that the board had no authority except, 
first, to determine whether or not the votes given had been cor- 

1 Stat. Va. 1869-70, p. 95, s. 69. 3 Const. Ky. art. 13, s. 7. 

2 Ellyson's case, 20 Gratt. 10. 4 Kev. Stat. Ky. s. 32, art. 7, s. 8. 



671 

rectly summed up ; secondly, to decide as to the legality of the 
votes given ; thirdly, to decide, by lot, who was entitled to the 
office, when there was a tie between the candidates receiving the 
highest number of votes cast ; and, fourthly, to decide whether or 
not the candidate, receiving the highest number of legal votes 
cast, was qualified to receive the office, and, if he was not, to order a 
new election ; that the board had no authority to find that an elec- 
tion was not held, in accordance with the laws and constitution of 
the state, or to find that it was held under the supervision of offi- 
cers of the army, or that a majority of the voters were intimidated 
by armed soldiers ; that the board had no authority, upon such 
finding, to adjudge that the candidate who received the highest 
number of votes, did, in fact, receive no votes which were legal 
and constitutional ; and that they had no authority thereupon to 
declare the office vacant. 1 

§ 804. Under a statute providing that parties to a controversy, 
which might be the subject of a civil action, may, without action, 
agree upon a case containing the facts on which the controversy 
depends, and submit the same to any court which would have 
jurisdiction, if an action had been brought, and that the court 
shall, thereupon, hear and determine the case, and render judg- 
ment thereon, as if an action were depending, it is competent for 
contesting parties, claiming the same office, — the one, out of pos- 
session, demanding against the other, in possession, judgment of 
ouster, as in quo warranto, — to state a case containing the facts, 
and to submit the legal questions arising therefrom to the supreme 
court, and that court has jurisdiction to hear and decide the case 
in that form of proceeding. 2 

§ 805. Where the statute required that certain officers should, 
" at the first county court after their election, enter into bonds (and) 
take the oath," it was held that, in the absence of any specific pro- 
vision as to the jurisdiction of a contested election case, the county 
court, which had the power to induct these officers, had jurisdiction 
of cases in which their elections were contested. 3 Generally, in 
the absence of a contrary provision of law, the court, having 
power to induct an officer, has jurisdiction to determine the validity 
of his election. 4 In Texas the district court has no jurisdiction of 

1 Leeman i). Hinton, 1 Duv. 37. 3 Blackburn v. Vick, 2 Heisk. 377. 

2 Alexander v. McKenzie, 2 S. C. 81. 4 State «. Burchfield, 12 B. J. Lea, 30. 



672 

the contest prescribed by the statute, but has jurisdiction of an infor- 
mation in the nature of a quo warranto, to try the right to an office, 
on the relation of a party claiming it, against one who usurped the 
same and holds possession of it wrongfully, provided its value 
amounts to $500. 1 Under a statutory requirement that " any can- 
didate for justice of the peace, intending to contest the election, 
shall notify the sheriff of his intention, and the sheriff shall with- 
hold the returns, in that case, from the governor, until the contest 
is decided," 2 a contest cannot be commenced, in the county court, 
after the officers claiming to be elected have been inducted into 
office, but the remedy is by proceeding in the circuit court. 3 

§ 806. It was provided, in the charter of the city of Des Moines, 
that the city council should be "the judges of the election, returns, 
and qualifications of their own members." 4 Under this charter 
the city council enacted an ordinance containing the following 
section : " The election of any city officer may be contested by any 
elector of the city ; and the proceedings shall be in accordance 
with the 30th chapter of the code of Iowa, regulating the mode of 
contesting county officers, so far as the same may be applicable ; 
provided the city council shall be the tribunal before which such 
contest shall be had, whose decision shall be final." Subsequently, 
by authority of law, the special charter of the city was abandoned, 
and the city was organized under the general incorporation law, 
which contained a provision that " all laws, ordinances, and reso- 
lutions, heretofore lawfully passed and adopted by the city coun- 
cil, shall be, remain, and continue in force, until altered or repealed 
by the city council established by this act." On habeas corpus a 
prisoner, held in custody under a writ issued in the name of the 
mayor, claimed that his arrest and imprisonment were illegal, 
because the city council had no jurisdiction of the contested elec- 
tion case, which was decided in favor of the person in whose name 
the writ was issued, and the returns of the canvassers showed that 
another person was elected mayor. The court held that the mayor 
was a member of the city council, in the sense of the statute con- 
stituting the city council the "judges of the election, returns, and 
qualifications of their own members," and that the ordinance, 

1 State v. Owens, 63 Texas, 261. "Charter Des Moines, Jan. 28, 1857, 

2 Code Tenn. 1871, s. 895. s. 4. 

3 Gallagher v. Moore, 12 Heisk. 257. 



673 

relating to contested elections, enacted under the special charter, 
not being in conflict with any provision of the general incorpora- 
tion law, remained in force after the reorganization of the city. 1 

§ 807. Under constitutional provisions declaring that " the judi- 
cial power of the state shall be vested in a supreme court, in district 
courts, courts of common pleas, courts of probate, justices of the 
peace, and in such other courts, inferior to the supreme court, in 
one or more counties, as the general assembly may, from time to 
time, establish;" 3 that " the general assembly shall grant no 
divorce, nor exercise any judicial power not herein expressly con- 
ferred ;" 3 and that " the general assembly shall determine, by law, 
before what authority, and in what manner, the trial of contested 
elections shall be conducted," 4 it is competent for the legislature 
to confer authority to determine contested elections upon the 
state senate ; the power so conferred is not judicial in the sense of 
the constitution. 5 It was competent for the Dominion parliament to 
enact the " Dominion Controverted Elections Act," of 1874, and, 
whether that act did, or did not, establish a Dominion court, the 
Dominion parliament had authority to confer upon the superior 
courts of the respective provinces, and the judges thereof, the power, 
and to impose upon them the duty, of trying controverted elec- 
tions of members of the house of commons, and did not, in utilizing 
existing judicial officers, and established courts, to discharge the 
duties assigned to them by that act, invade, in any particular, the 
rights of the local legislatures. But, even without express legisla- 
tion, upon the abandonment, by the house of commons, of the 
jurisdiction exercised over controverted elections, the power of 
dealing therewith would ipso facto fall within the jurisdiction of 
the superior courts of the provinces, by reason of the inherent 
jurisdiction of such courts over civil rights. 6 

§ 808. A city charter contained the following provision : " The 
city council shall be the sole judge of the election, returns, and 
qualifications of its own members." 7 It was subsequently enacted 
as follows : (i The several circuit courts of the state shall have 
jurisdiction, to hear and determine all cases, in which the election 



1 Strahl's case, 16 Iowa, 369. 

2 Const. Ohio, 1851, art. 4, s. I. 

3 Id. art. 2, s. 32. 

4 Id. art. 2, s. 21. 

43 



5 State v. Harmon, 31 Ohio St. 250. 

6 Valin v. Langlois, 3 S. C. Canada, 1, 

7 Stat. N. J. 1871, 224, s. 26. 



674 

of any township, county, or city, by the inhabitants of the respec- 
tive counties, may be contested." 1 It was held that the latter act 
did not, by implication, repeal the former ; that the common coun- 
cil was still the judge of the elections, qualifications, and returns of 
its own members, whatever the supervisory power of the courts 
might be. 2 The statute contained the following provisions : " The 
select and common councils respectively shall, in like manner as 
each branch of the legislature of this commonwealth, judge and 
determine upon the qualifications of their members." " No com- 
plaint of an undue election, or false return, shall be acted upon, 
unless presented within ten days after the organization of councils, 
nor unless signed by at least fifteen qualified voters of the proper 
ward, and at least three of whom shall take and subscribe an oath, 
or affirmation, that the facts set forth in said petition, or com- 
plaint, are true." It was held that a complaint, of an undue 
election of a member, was to be determined by the councils, and 
not upon quo warranto ; and that a complaint that the election 
was held without sufficient notice was a complaint of an undue 
election. 3 A special election of councillors of a royal burgh, held 
under a warrant from the crown, in Scotland, in pursuance of the 
statute, 4 must be contested in the same manner as a regular 
annual election of such officers. 5 Statutory provisions, constitu- 
ting municipal bodies judges of the elections and qualifications of 
their own members, do not exclude the jurisdiction of the courts, 
unless such exclusion appears to have been intended by the legis- 
lature. 6 

§ 809. Under a statute providing that, " at the close of f the can- 
vassing, * the board of canvassers shall declare the person 
having the highest number of votes, for any county office, duly 
elected, subject to an appeal to the district court of the proper 
county, provided that notice of such appeal shall be entered, with 

1 Stat. N. J. 1876, 198, s. 100. Common Council, 40 Conn. 359 ; Baxter 

2 Henry v. City Council, 42 N. J. 335. v. Brooks, 29 Ark. 173 ; Cooley Const. 
: ' Commonwealth v. Henszey, 81 Pehn. Lim. 276, 623, 634 ; Heath's case, 3 Hill, 

St. 101. N. Y. 42 ; People v. Mulvaney, 13 Mich. 

4 16 Geo. 2, c. 2. 481 ; Commonwealth v. Leach, 44 Penn. 

5 Tod v. Tod, 1 Fac. Dec. 635. St. 332 ; State v. Fitzgerald, 44 Mo. 

6 Dill. Munic. Corp. ss. 139-142 ; Ew- 425; Commonwealth v. Carrigues, 28 
ing v. Filley, 43 Penn. St. 384 ; Smith Penn. St. 9. 

v. New York, 37 N, Y. 518 ; Selleck v. 



675 

the clerk of said court, within twenty days from the day of elec- 
tion," 1 an election contest, respecting a county office, can only be 
instituted by an appeal, taken from the decision of the board of 
county canvassers to the district court, within the time, and in the 
manner, therein prescribed. The requirements of the statute are 
jurisdictional. 2 An information in the nature of a quo warranto 
does not lie, in Missouri, to determine the legality of the votes, or 
the qualifications of voters. The jurisdiction of the statutory 
tribunal for the trial of contested elections is exclusive. 3 Under 
statutes providing that " the county court shall hear and determine 
contests of election of all county, township, and precinct officers, 
and all other officers, for the contesting of whose election no pro- 
vision is made," and that " the city council shall be judge of the 
election and qualifications of its own members," the county court 
has no jurisdiction of contested elections of members of the city 
council. 4 A statute, declaring that "the city council shall be the 
judge of the election and qualification of its own members," 5 does 
not interfere with the jurisdiction of the county court to adjudicate 
a contested election of the mayor of the city. 6 

§ 810. When the law prescribes a mode of deciding cases of 
contested elections, designed to 'be final, the courts have no 
authority to adjudicate such cases, other than that which the law 
confers upon them. 7 Under a state constitution, which confers 
upon the district court no jurisdiction of any civil proceeding, 
which is not a suit, complaint, or plea, wherein the matter in con- 
troversy amounts to a specific sum, or a proceeding embraced in 
the general power to issue an injunction, mandamus, certiorari, 
and writs necessary to enforce its jurisdiction, the district court 
cannot, by statutory authority, entertain jurisdiction of a proceed- 
ing, which is not a suit, between claimants to an office, for the 
recovery of the office itself, but is instituted merely to contest the 
election. 8 Under a statutory provision that "all cases of con- 
tested elections of any of the officers not provided for in the 
constitution, or in the preceding section, shall be decided by the 
judges of the several circuit courts," 9 the judges have power and 

1 Gen. Stat. Minn. c. 1, s. 29. 6 Winter v. Thistlewood, 101 III. 450. 

2 Borer v. Kolars, 23 Minn. 445. 7 Wright v. Fawcett, 42 Tex. 203. 

3 State v. Mason, 77 Mo. 189. 8 Gibson v. Templeton, 57 id, 555. 

4 Linegar v. Kittenhouse, 94 111. 208. 9 Code Md. art. 35, s. 3, 
s Rev. Stat. 111. 1874, c. 24, s. 34. 



676 

jurisdiction to determine that no person was legally elected, and to 
declare the office vacant. 1 When the general laws provide that 
" an action may be maintained in the name of the state, upon the 
information of the prosecuting attorney, or upon the relation of a 
private party, against the person offending in the following cases : 
1, When any person shall usurp, intrude into, or unlawfully hold, 
or exercise, any public office," 2 * a provision, in a city charter, 
that the board of trustees " shall judge of the qualifications and 
election of their own members," does not oust the jurisdiction of 
the circuit court over usurpations of such office. 3 The right of 
a city council to determine a contest for a city office does not 
result, by implication, from the right to provide for the election 
of city officers, nor from the right to provide by-laws and ordi- 
nances, not inconsistent with the constitution, or laws, of the 
United States, or of this state, to carry into effect the provisions 
of its charter. 4 General provisions of statutes, regulating con- 
tests of elections of public officers, are not applicable to an elec- 
tion held to determine the question of the removal of a county 
seat, unless made so by the peculiar language of the statutes. 5 
Under a statute 6 conferring upon the circuit court jurisdiction to 
determine cases of elections contested, on one, or more, of seven 
specified grounds, which did not include the unconstitutionality 
of the election law, it was held that the powers of the court could 
only be exercised with reference to the grounds of contest enu- 
merated in the act, and that, in such a proceeding, the question 
of the constitutionality of the election law could not be adjudi- 
cated. 7 

§ 811. The adoption of a statutory mode of contesting elections 
does not per se exclude other remedies. 8 But where a specific 
and adequate remedy, for the correction of errors, or mistakes, in 
the election of public officers, is provided by statute, that remedy 
must be pursued ; mandamus will not lie to compel the canvassers 
to recanvass the votes, and furnish the relator with evidence upon 
which to contest the election in some other mode. 9 The office of 

1 Handy v. Hopkins, 59 Md. 157. 6 Rev. Stat. N. J. 1878, p. 355, s. 100. 

' 2 Civil Code, Oregon, 1863, s. 354. 7 Ellingham v. Mount, 43 N. J. 470. 

3 State v. McKinnon, 8 Oregon, 493. 8 State v. Stearns, 11 Neb. 104. 

4 Eobertson v. Groves, 4 id. 211. 9 State v. Stewart, 26 Ohio St. 216. 

5 Clarke v. Jack, 60 Ala. 271. 



677 

governor does not exist by virtue of the common law ; it is a 
creation of the constitution ; and a specific mode of contesting 
elections to that office being prescribed in the constitution, that 
mode is exclusive of every other. The constitutional provision 
that contested elections, for the office of governor, shall be deter- 
mined by both houses of the general assembly, in such manner as 
is, or may hereafter be, prescribed by law, constitutes the general 
assembly a judicial tribunal, with the exclusive jurisdiction of such 
contests. 1 Under a constitutional declaration that, " in case of 
any contested election, the governor shall send the returns to the 
house of delegates, who shall judge of the election and qualifica- 
tion of the candidates at such election," 3 it was held that the 
house of delegates only had jurisdiction of contests between claim- 
ants who were candidates at such election, that the house held no 
power to judge of the rights of persons who were not candidates. 3 
In a proceeding in equity, to enjoin the collection of a tax, imposed 
by the board of councillors of a town, on the ground that they 
were not legally elected officers of the town, it was held, by the 
supreme court of Kentucky, that, where the statute had provided 
the means of contesting elections generally, and there was no pro- 
vision applicable to the particular case, the final result, as certified 
by the officers of election, must determine the issue. 4 

§ 812. Where the constitution declares that " the general assem- 
bly shall determine, by law, before what authority, and in what 
manner, the trial of contested elections shall be conducted," 5 and 
the statute invests courts of common pleas with jurisdiction of 
such cases, and also provides that " the writ of mandamus may 
be issued, to any inferior tribunal, corporation, board, or person, 
to compel the performance of an act which the law specially en- 
joins, as a duty resulting from an office, trust, or station," and that 
this writ may not be issued in any case "where there is a plain and 
adequate remedy in the ordinary course of the law," 6 the institu- 
tion of proceedings to contest the election, in the court of common 
pleas, after a declaration of the result, and certificate of election, 
by the proper officers, precludes a mandamus to compel the offi- 
cer to canvass certain precinct returns, excluded by them in good 

1 Baxter ». Brooks, 29 Ark. 173. 4 Clarke v. Bogers, 81 Ky. 43. 

2 Const. Md. 1864, art. 4, s. 15. 5 Const. Ohio, art. 2, s. 21. 

3 Magruder v. Swann ? 25 Md. 173. 6 Code Ohio, ss. 569, 570. 



678 

faith. A contest on appeal to the court of common pleas being 
the specific remedy, provided by the statute, for the correction 
of all errors, frauds, and mistakes, which may occur in the pro- 
cess of ascertaining and declaring the public will, as expressed 
through the ballot-boxes, when such appeal is perfected the whole 
subject-matter is withdrawn from the sphere of the canvassers, 
and they become fundi officio. 1 When an election is contested, 
in a proceeding made exclusive, by statute, the public is concluded 
by the result, as well as the parties. 2 Under a constitution requir- 
ing that " the general assembly shall determine, by law, before 
what authority and in what manner the trial of contested elections 
shall be conducted," 3 and conferring upon the supreme court and 
district courts of the state " original jurisdiction in quo warranto," 4 
if a specific mode of contesting elections be prescribed, by statute, 
according to the requirement of the constitution, it will exclude 
the common law inquiry by proceedings in quo warranto. The 
statute will bind the state as well as individuals. 5 

§ 813. In the absence of statutory regulations for proceedings 
in contested election cases, the court invested with jurisdiction 
thereof has power to regulate the practice, provided no fundamental 
principle of law be violated. Such regulations must secure to 
each party his day in court, with due notice of the proceedings, and 
must enforce such an arrangement of the pleadings as will clearly 
present the questions to be adjudicated, by compelling the con- 
testant to specify the grounds of his contest, and the contestee to 
reply, so as to raise a question, either of law, or of fact. 6 Where 
the law vests the jurisdiction of contested election cases in the 
same court upon which it confers the power to canvass the precinct 
returns, such jurisdiction will not be exercised before the returns 
shall have been duly canvassed. 7 Where the statute declares that 
" the common council shall be judges of the election and the quali- 
fication of its own members, and shall have the power to determine 
contested elections," the power expires with the council that 
admits a member, and a rehearing of the questions cannot be 
granted by any subsequent council ; the question whether the 

1 Ingerson v. Berry, 14 Ohio St. 315. 5 State v. Marlow, 15 Ohio St. 114. 

2 State v. Harmon, 31 id. 250. ° Blackburn v. Vick, 2 Heisk. 377 ; Bor- 

3 Const. Ohio, 1851, art. 2, s. 21. ing V, Griffith, 1 id. 456. 

4 Id. art. 4, s. 2. 7 Osgood v. Jones, 60 N. H. 273. 



679 

officer has disqualified himself, by removal from the ward, can be 
tried only by a judicial tribunal. 1 

§ 814. Where the legislature creates a board of commissioners, 
and confers upon it discretionary power to decide questions of 
public interest, but does not provide that a majority shall consti- 
tute a quorum, all must be present and consult, though a majority 
may decide. 2 

§ 815. An action cannot be maintained by an individual, either 
as corporator, or tax-payer, to determine the legality of the election 
of one claiming to hold a municipal office, or to restrain the exer- 
cise of unauthorized powers, by the officers of a municipal 
corporation, if the plaintiff be not thereby affected, in his private 
rights, as distinct from those of other corporators and tax -payers. 
The remedy in such cases is by action, or appropriate proceedings, 
in the name of the people of the state. 3 Where a party in interest 
is permitted to use the name of another, for the enforcement of a 
right, the nominal party will not be permitted improperly to inter- 
fere ; and, therefore, when an appeal is taken by the county 
supervisors, from a decision of the district court, ordering them, 
as county canvassers, to count certain votes rejected by them on 
the question of relocating the county seat, subsequently elected 
commissioners will not be permitted to interfere to dismiss the 
appeal, or prevent a hearing of the cause on its merits. 4 The 
supreme court of Tennessee has held that it is not the duty of the 
district attorney, in that state, to prosecute a contested election 
case. 5 

In an action, brought under the New York code of 1851, in the 
name of the people, against a person for intruding into and unlaw- 
fully holding and exercising an office, the person claiming the 
office has an interest in the question ; and he may be joined as 
plaintiff with the people. 6 

§ 816. In New Hampshire a petition for an inquiry into the 
facts of an election, a recount of the votes, the exclusion of the de- 
fendant from office, and the admission of the plaintiff thereto, 

2 Doran v. DeLong, 48 Mich. 552. 3 Demarest v .Wickham, 63 N. Y. 320. 

2 People v. Coghill, 47 Cal. 361 ; Grind- 4 State v. Cavers, 22 Iowa, 343. 

ley v. Barker, 1B.&P. 229 ; Crocker v. 5 Boring v. Griffith, 1 Heisk. 456. 

Crane, 21 Wend. 218 ; Babcock v. Lamb, fi People v. Ryder, 16 Barb. 370. 
1 Cow. 239 ; Rogers' case, 7 id. 526, 
note, and cases cited. 



680 

presented to the court after the canvass of the votes, will not be 
entertained in favor of a plaintiff who is in possession of the office, 
against a defendant who is not in possession of it, because quo war- 
ranto will not lie against a defendant not in possession of the 
office in controversy. 1 A person having an interest is entitled 
to make himself a party to an abandoned complaint, against an 
election of magistrates of a burgh, after the expiration of the 
period prescribed by statute for such complaint, for the purpose 
of determining the preliminary question whether a valid proceed- 
ing was commenced within the sixty days. 2 Under a statute, 
for the regulation of proceedings in certain cases of contested 
elections, declaring that " the said court shall thereupon grant a 
warrant, for summoning the magistrates and counsellors elected 
by the majority, upon thirty days' notice, and shall hear and 
determine the said complaint summarily," 3 it is sufficient to make 
the magistrates and counsellors defendants, in a case of the 
contested election of a deacon of the corporation, without making 
the members of the corporation parties. 4 Under a statute au- 
thorizing candidates, who, upon the returns and the official declara- 
tion of the result of the election, appear to have received a mi- 
nority of the votes, to contest the election, either party is entitled 
to contest in case of a tie vote, and the contestee will be, not the 
incumbent holding over, but the opposing candidate. 5 A person 
who assumes to be elected, though not in fact elected, may be 
made a defendant to a municipal election petition, under 35 and 
36 Yict. c. 60. 6 But, an unsuccessful candidate, who does not 
claim the election, cannot be made a defendant to a petition, al- 
though he had coalesced, for the purpose of the election, with two 
successful candidates, so as to be responsible for any act per- 
formed by either one of the three in furtherance of the common 
purpose. 7 An action cannot be maintained, by an individual 
claiming to hold a municipal office, to determine his right thereto, 
when it does not appear that any person claims the office in hos- 
tility to him, or that there has been any interference, by the de- 

1 Osgood v. Jones, 60 N. H. 282. 4 Hope v. Magistrates, 1 Fac. Dec. 284. 

2 Miller v. Gibson-Craig, 2 Fac. Dec. 5 Erdman v. Barrett, 89 Penn. St. 320. 
190. 6 Yates v. Leach, 43 L. J. C. P. 377. 

3 16 Geo. 2, c. 11, s. 24. 7 Lovering ®. Dawson, 32 L. T. N. S. 

819. 



681 

fendant, with his legal rights as officer. 1 Express written mandate 
is required, in Scotland, to authorize a petition and complaint, at 
the instance of an elector who has gone temporarily abroad, against 
an election of magistrates of a royal burgh ; and the want is not 
cured by the appearance of counsel, or by the ratification of the 
party on his return. 2 

§ 817. When the general election law enumerates the county offi- 
cers to be chosen at the time of its enactment, and gives to each 
of them the right of contest, by appeal, from the determination of 
the canvassers, to the court of common pleas, and a statute, sub- 
sequently enacted, creates a board of infirmary directors for each 
county, " who shall be chosen, by the qualified electors thereof, 
at the general election," the provisions of the general law regula- 
ting the election of county officers, including those conferring the 
right of contesting the election by appeal to the court of common 
pleas, become applicable to the election of infirmary directors. 3 

§ 818. Under a statute, authorizing any elector of the proper 
county to contest an election, and providing that, " when any such 
elector shall choose to contest the right of any person declared 
duly elected to such office, he shall, within forty days after the 
return day of such election, file, with the county clerk, a written 
statement setting forth specifically: 1. The name of the party 
contesting such election, and that he is a qualified elector of the 
district, county, or township, as the case may be, in which such 
election was held," <fcc., 4 it is sufficient for the contestant to allege, 
in his notice of contest, or complaint, that he is, at the time of 
filing it, a qualified elector of the county, without alleging that he 
was such at the time of the election. 5 A failure to specify the 
time of the election is fatal to a declaration or notice of contest. 6 
When the law only permits a contest of an election, in the district 
court, by appeal from the determination of the board of county 
canvassers, it is not necessary to include, in the notice of contest, 
a statement that such appeal is taken. 7 A statutory requirement 
that a contestant shall file a " petition, signed by at least twenty 
voters of the parish, praying the courts to examine the facts, and 

1 Demarest v. Wickhara, 63 N. Y. 320. 4 Wood's Cal. Dig, p. 381, s. 56. 

2 Arbuckle v. Innes, 2 W. & S. 528 ; 5 5 Minor v. Kidder, 43 Cal. 229. 
S. 505. fi People v. Kyder, 16 Barb. 370. 

3 State v. Stewart, 26 Ohio, 216. 7 Newton v. Newell, 26 Minn. 529. 



682 

decide thereon," is imperative ; and a certified copy of such a 
petition (the original of which was filed by the same plaintiff in 
another suit) will not support his case. 1 

§ 819. It was claimed, in the supreme court of Indiana, that 
the want of a sufficient affidavit to the notice of contest was fatal 
to the jurisdiction of the board of commissioners, constituted by 
law, for the trial of 'contested election cases ; that the question of 
the sufficiency of the affidavit was a jurisdictional question, which 
could be entertained by the supreme court, although not carried 
thither by appeal. But the supreme court held that the board of 
commissioners had the power, in the first instance, to decide that 
question, and therefore had jurisdiction of the case ; and that, 
whether their decision was right or wrong, the question could only 
be raised in the supreme court on appeal. 2 The statutes of Indiana 
contained the following provision : " Whenever any oath, affirma- 
tion, or affidavit, is authorized, or required, by law, or is necessary, 
in the progress of any cause, suit, matter, or proceeding, in the 
circuit court, to be taken by any party, his agent, attorney, or 
other person in his behalf, or which may be necessary in the dis- 
charge of the duties of clerk, such clerk shall, in person, or by 
deputy, have full power and authority to administer such oath or 
affirmation." 3 It was held that this did not authorize the clerk 
of the circuit court in vacation, when he was not acting as clerk 
of the board of county commissioners, to administer an oath, veri- 
fying the statement of the grounds of - contesting the election of a 
county auditor, before the board ; and that a statement, so verified, 
was not sufficient to give jurisdiction of the contest, either to the 
board of commissioners, or, on appeal, to the circuit court. 4 

§ 820. When the statute requires the notice of contest to be 
verified by the contestant, if it be verified by another person the 
proceedings will be dismissed. 5 By the law of Indiana the county 
auditor was required, upon receiving a notice of contest, to give 
notice thereof, in writing, to the clerk of the circuit court, to issue 
a notice to the county commissioners to meet for the trial of the 
contest, and to notify the contestee to appear at the trial. The 
statute also provided as follows : " Auditors and their deputies are 

1 Ducote v. Gremillion, 32 La. An. 540. i Albee v. May, 8 Blackf . 310. 

2 Curry v. Miller, 42 Ind. 320. 5 Holton *>. Brown, 46 Ind. 122. 

3 Rev. Stat. Ind. 1843, c. 38, s. 56. 



683 

authorized to administer oaths necessary in the performance of 
their duties ; also the oath of office to any officer who receives his 
certificate of election or appointment from such auditor, and oaths 
relating to the duties of such officers." 1 The supreme court of 
the state held that, under these statutory provisions, the auditor 
was competent to administer the contestant's oath to his notice of 
contest. 2 

§ 821. When the statute declares that the notice of contest 
" must be verified by the affidavit, of the contesting party, that the 
matters and things therein contained are true," 3 an affidavit that 
the statement is true, except as to matters therein set forth on 
information and belief, and that, as to these matters, the affiant 
believes it to be true, is a substantial compliance with the statute. 4 
Where the statute requires an elector, upon instituting a contest 
of an election, to file " a written statement, specifying the grounds 
of contest, verified by the affidavit of such elector," 5 the qualifica- 
tion of the averment, in the affidavit, by the words " as he is 
informed and believes," is not fatal to the notice of contest. 6 A 
demurrer, assigning a want of sufficient facts as grounds for con- 
testing an election, presents no question as to the sufficiency of 
the affidavit. 7 

§ 822. When jurisdiction of a contested election case is acquired 
by the court, upon the filing of a written statement of the contest- 
ant's intention to contest the election, setting forth the particular 
causes of contest, and accompanied by a bond for costs ; but the 
contestant is also required to serve, on the contestee and judges, 
a notice containing a brief statement of the causes of contest, it is 
error to dismiss the case, after the time for commencing a new 
proceeding expires, on the ground that the last mentioned notice 
did not contain a brief statement of the causes of contest. 8 

§ 823. When the statute requires contested elections to be deter- 
mined, at the first term of the county court, which shall be held fif- 
teen days after the official count, and notice is given that an election 
will be contested on the first Monday of January, but no term is held, 

a Rev. Stat. Ind. G. & H. 123. 4 Kirk v. Rhoads, 46 Cal. 398. 

2 Wheats. Ragsdale, 27 Ind. 191 ; Gar- 5 Rev. Stat. Ind. G. & H. 316. 
rett v. Higgins, id. 162 ; Curry v. Mil- 6 Curry v. Baker, 31 Ind. 151. 
ler, 42 id. 320. . 7 Curry v. Miller, 42 id. 320. 

3 Code Civ. Proc. Cal. s. 1115. ti Buckland v. Goit, 23 Kan. 327. 



684 

after the date of the notice, until the first Monday of the month 
of February, the day specified in the notice is material, and the 
notice is not sufficient to sustain proceedings begun on the first 
Monday of the month of February. 1 When the jurisdiction of 
the court is made to depend upon the time of giving notice of the 
intended contest of an election, the requirement that such notice 
shall be given within a designated period of time after the official 
count is mandatory. 2 

§ 824. The courts will assimilate proceedings, in contested elec- 
tion cases, to other legal proceedings, and will require the same 
precision, in averments, which is required in other proceedings 
in which the courts decide as to the law and the facts. 3 Every 
petition, alleging an undue election and false return, must be com- 
plete in itself, and state such grounds as would, if sustained by 
proof, be sufficient cause for adjudging the election void, or 
declaring another person elected. 4 A statement that A. B. was 
returned, but C. D. was elected, will not be sufficient ; nor will a 
statement that many illegal votes were received and counted for 
A. B., that fraudulent votes were received; and that, by the illegal 
mode of canvassing the ballots, a majority had been made to 
appear in his favor, not showing what would have changed the 
result, or how it would have been changed ; nor will a statement 
that "the contestant was duly elected, as will appear from a count 
of the ballots, and an investigation of the election," without a 
particular designation of any error in the canvass, or fraud in the 
election. 5 It is a general rule that neither party to a contest can 
avail himself of votes, proved in the testimony, but not averred in 
his pleading. Parties may prove less, but not more, than they 
allege. But it has been held in Pennsylvania that while a speci- 
fication remains, pertinent evidence cannot be rejected merely 
because the specification is irrelevant. 6 The complaint in a civil 
action for the usurpation of an office, substituted, by statute, in 
Wisconsin, for the writ of quo warranto, must state the facts con- 
stituting the usurpation and not mere legal conclusions. But the 

1 Adcock v. Lecompt, 66 Mo. 40. 4 Kneass' case, 2 Pars. 553 ; Skerrett's 

a Hixon v. Price, 45 id. 341 ; Cas- case, id. 509. 

tello 9. Court, 28 id. 278; Wilsons. 5 Skerrett's case, id. 509. 

Lucas, 43 id. 290. 6 Thompson v. Ewing, 1 Brewst. 67. 

3 Carpenter's case, 2 Pars. 537. 



685 

omission to make such statement of facts cannot be reached by a 
motion to dismiss. It can only be reached by demurrer, or by 
objection taken at the trial. The only pleadings, in such an action, 
are the complaint and answer. No replication is allowed. 1 In a 
contested election case, under the statute of Arkansas, the notice 
of contest performs the double office of writ and declaration. 2 

§ 825. Under a statute requiring the contestant to serve upon 
the contestee " a notice, specifying the points on which the elec- 
tion will be contested," 3 a notice containing averments that, in 
canvassing the votes, in certain precincts, the judges of election 
failed to read and announce the votes separately, that, in each of 
the precincts, ballots, which did not bear the name of the contes- 
tee, were announced, counted, and returned for him, and that, in 
each of the precincts, votes were duly cast for the contestant, 
which were not counted, or returned, for him, is sufficient, if sup- 
ported by proof, to warrant a recount of the ballots, by the district 
court. 4 Under a statute providing that there shall be a precinct, 
for holding elections, in each township, where a contest arises, 
involving the return of a particular precinct, the complaint will not 
be held defective, in the supreme court, for want of an averment 
that the place named " was a precinct at which an election could 
have been held," the words township and precinct having been used 
as synonymous, in the pleadings of both parties, and no objection 
having been taken in the court below. 5 To impeach the election 
of a party returned as elected it is not enough to allege that many 
votes were illegal, without showing that some other candidate had 
a majority of legal votes. 6 The acts of officers of election de facto 
are presumed to have been legally and properly performed. When 
the acts of those who exercise a judicial, or semi-judicial, author- 
ity are impeached, for irregularity or fraud, it is necessary to show, 
not only in what way those officers have violated their duty, but 
also that the result was to nullify the election. Unless the petition 
set forth such facts as would change the result, the court will not 
entertain it, nor order an investigation ; but will quash it on 
motion. 7 An allegation that votes were fraudulently received, by 

1 State v. Messmore, 14 Wis. 125. 4 O'GormaD v. Kichter, 31 Minn. 25. 

2 Swepston v. Barton, 39 Ark. 549 ; 5 People v. Jones, 20 Cal. 50. 
Vance v. Gaylor, 25 id. 32. 6 Hex v. Jefferson, 2 N. & M. 487. 

3 Gen. Stat. Minn. c. 1, 52. 7 Carpenter's case, 2 Pars. 537. 



• 686 

officers of election, is not material, unless the petition shows the 
number of votes so received, for whom they were polled, and that 
they affected the result. 1 But under a statute providing that, " the 
election of any person, declared duly elected to any county office, 
may be contested, by any elector of the county, for any error or 
mistake, in any of the boards of judges or canvassers, in counting, 
or in declaring the result of the election, if the error, or mistake, 
would affect the result," 2 and that the notice of contest "shall 
contain the names of the contestor and the contestee, and of the 
judges named, a brief statement of the causes of contest, and the 
day of trial," 3 it was held that a notice, containing the averment that 
" the board of county canvassers rejected and refused to count the 
votes cast in certain townships," without showing that this action 
affected the result, was a sufficient compliance with the statute. 4 
A ground of contest, not specified in the notice, cannot be set up 
on the trial. 5 It is not necessary that the complaint, in a contested 
election case, should exhibit the names of the persons alleged to 
have voted illegally. 6 

§ 826. The notice of contest stated that the contestant received 
1716, and the contestee 1719, votes; that illegal votes were cast 
for the contestee, at eight specified precincts ; and that, if such 
illegal votes had not been cast, the contestee would have been 
elected. It was held that inasmuch as illegal votes were alleged 
to have been cast, for the contestee, at eight precincts, the number 
of such illegal votes could not have been less than eight, and the 
deduction of these from the contestee's vote would show the con- 
testant entitled to the office, the grounds of contest were well 
stated. 7 An averment that the contestant was duly elected to the 
office in question, at an election held on a day specified, and that 
the returns, upon which the contestee was declared elected, were 
false and fraudulent, is sufficiently broad and comprehensive to 
admit an inquiry into the legality of the election, and as to the 
number of votes cast for the respective candidates. 8 A specifica- 
tion is not defective because it charges that votes to a certain 
number and upwards had been received. 9 The complaint, or 

: Mann v. Cassidy, 1 Brewst. 11. c Doerflinger v. Hilmantel, 21 Wis. 566. 

2 Gen. Stat. Kan. 1868, 424. 7 Nichols ©. Ragsdale, 28 Ind. 131. 

3 Id. 425. e Handy v. Hopkins, 59 Md. 157. 

4 Steele v. Martin, 6 Kan. 430. 9 Mann v. Cassidy, 1 Brewst. 11. 

5 Gause v. Hodges, Smith, 291. 



687 

notice of contest, in a contested election case, must show that the 
plaintiff, or contestant, received more votes than any other candi- 
date for the office ; but it is not necessary that it should show the 
number of votes cast for the several candidates. That is a matter 
of evidence. 1 

§ 827. In petitions and answers, in contested election cases, all 
that can be required is that the allegations shall be intelligibly 
and precisely stated. The statement that a certain number of 
votes were received, in divisions named, from persons not qualified, 
and that they were counted for one of the candidates is sufficiently 
certain. The reasons, on which the charge of illegality is based, 
and the names of the voters, need not be given. 2 When an elec- 
tion is contested, on the ground that blank ballots have been 
counted in favor of the contestee, it is not necessary to set forth, 
in the notice of contest, the names of the voters who cast the 
blanks, although the statute requires the contestant to specify, in 
his notice, " the names of all persons objected to," 3 since the ob- 
jection, in such case, is not to the voters, but to the action of the 
officers of election in counting blanks as votes. 4 But a notice of 
contest, based on the ground that voters were improperly in- 
nuencedj in casting their votes, must give the names of the persons 
alleged to have been so influenced, even in the absence of a statu- 
tory requirement to that effect. 5 . A petition, in a contested elec- 
tion case, under the statute of Pennsylvania, must state the facts 
distinctly ; charge an undue election and false return ; show the 
figures returned for each candidate, and the votes which were 
received by each; and must specify the districts in which the 
votes were illegally received, the manner in which the fraud was 
effected, and the number of votes fraudulently received. The 
petitioners need not set out their full knowledge, nor give the 
names of the illegal voters, or the reasons why the votes were 
illegal. 6 

§ 828. When the statute provides that " no testimony must be 
received of any illegal votes, or the rejection of any legal votes, 

1 People v. Ryder, 16 Barb. 370. 3 Wag. Stat. Mo. 573. 

2 Weaver v. Given, 1 Brewst. 140 ; 4 Moffatt v. Montgomery, 68 Mo. 162. 
Batturs v. Megary, id. 162 ; Gibbons 5 Applegate v. Eagan, 74 id. 258. 

v. Shepard, 65 Penn. St. 36; Thomp- . 6 Mann v. Cassidy, 1 Brewst. 11. 
son v. Ewing, 1 Brewst. 67 ; Wheat v. 
Ragsdale, 27 Ind. 191. 



688 

in any contested election, unless the party contesting has given, 
to the adverse party, notice in writing of the number of illegal 
votes, and by whom given, or of the number of legal votes rejected, 
and by whom offered, which he expects to prove on the trial," 1 if 
a party, whose election is contested, desire to offer evidence of 
votes for himself, which were illegally rejected, or votes for his 
opponent, which were illegally received, he must serve a notice of 
the names of such voters similar to that required of the contest- 
ant ; otherwise he can only introduce rebutting evidence, as to 
the votes specified in the contestant's notice. 3 Where the statute 
declares that " no testimony shall be received of any illegal votes, 
unless the party contesting such election shall deliver to the oppo- 
site party, at least three days before such trial, a written list of the 
number of illegal votes, and by whom given, which he intends 
to prove on such trial, and no testimony shall be received of any 
illegal votes, except such as are specified in such list," 3 the con- 
testee, if he rely on illegal votes cast for the contestant, must 
furnish the contestant, three days before the trial, with the names 
of the voters alleged by him to have voted illegally. 4 When a 
respondent has not been connected with the fraud, by which he 
obtained his certificate, he will be allowed to meet the contest- 
ant's charge of direct and palpable fraud with evidence of specific 
fraud ; but he will not be allowed to go into general allegations 
from which the court is to be asked to infer fraud. If a respond- 
ent has been clearly guilty of fraud, the court will not assist him 
to establish counter charges of other frauds against the contest- 
ant. 5 

§ 829. It is not necessary to aver, in a complaint, or notice of 
contest, that the relator, or contestant, possessed the requisite 
qualifications for the office. That is to be presumed, until the 
contrary is averred and proved by the defendant. 6 If the ground 
for contesting an election be fraud, the petition must state, with 
precision, in what the fraud consists, and show that it changed 
the result, and how it changed it. 7 An averment, by a party to a 
contested election case, that he was elected by the loyal voters of 

1 Code Ala. 1852, p. 108, s. 277. 5 Weaver v. Given, 1 Brewst. 140. 

2 Griffin v. Wall, 32 Ala. 149. 6 People v. Eyder, 16 Barb. 370. 

3 Wood's Cal. Dig. p. 381, s. 57. 7 Carpenter's case, 2 Pars. 537. 

4 Norwood fl. Kenfield, 30 Cal. 393. 



689 

a county, or district, is irrelevant, and lays no foundation for proof 
that lie was duly elected. The phrase loyal voters is not equivalent 
to legal voters or qualified voters. x An averment, in a complaint, 
that a meeting of electors was duly convened implies that it was 
regularly convened, and, if necessary to its regularity, that it was 
an adjourned meeting. 2 

§ 830. A statute of Arkansas contained the following provision : 
" The person, contesting any such election, shall give to the opposite 
party notice, in writing, ten days before the term of the court at 
which such election shall be contested, specifying the grounds on 
which he intends to rely, and, if objections be made to the quali- 
fications of voters, the names of such voters, with the objection, 
shall be stated in the notice." 3 It was held that the real inquiry, 
in a contest under the statute, was whether the contestant, or the 
respondent, received the highest number of legal votes, and it was 
not confined to the ground specified in the notice of contest ; that 
the respondent might, without a cross contest, question the validity 
of votes cast for the contestant, either in the precincts specified in 
the notice, or in other precincts. 4 

§ 831. In pursuance of a provision of the city charter, author- 
izing the city council to provide, by ordinance, for the removal 
from office of. all city officers, for neglect of duty, or misconduct 
in office, an ordinance was passed, declaring that any officer, who 
should fail, or refuse, to obey any ordinance, resolution, or order, 
of the board of councilmen, should be deemed guilty of a neglect 
of duty, and that any officer, who should wilfully violate any ordi- 
nance, resolution, or order, of the city council, or any provision 
of the original, or amended charter, or who should be guilty of 
habitual drunkenness, should be guilty of misconduct in office. On 
an information in the nature of a quo warranto the following record 
of amotion was read, in evidence, against the defendant : " Charges 
were preferred and filed against defendant, for misconduct in 
office, and neglect of duty, April 15, 1874. The case was taken 
up and some additional evidence taken on behalf of the defendant ; 
the board then retired, for a few minutes, and returned the follow- 
ing verdict : The board of councilmen find the defendant guilty 
of neglect of duty, and misconduct in office ; and, on motion, it 

'Leeman v. Hinton, 1 Duv. 37. 3 Gen. Elect. Law. Ark. 1875, s. 72. 

2 People v. Walker, 23 Barb. 304. 4 Gowan v. Jackson, 32 Ark. 553. 

44 



690 

was resolved that he be discharged from the office of city marshal, 
and said office is hereby declared vacant." It was held that, while 
the defendant was not entitled to a jury, the general allegation of 
misconduct in office and neglect of duty was too vague and indefi- 
nite ; that the specific acts complained of should have been stated, 
in order that it might appear that the council had jurisdiction of 
the offence ; that the proceeding being summary the record should 
be precise ; and that there could be no intendment in favor of 
the jurisdiction, or of the regularity of the proceedings, in such 
cases. 1 

§ 832. It was provided by statute as follows : " If any candidate, 
or elector, * chooses to contest the validity of an election, * 
such person shall give notice thereof, in writing, to the person 
whose election he intends to contest, * expressing the points 
on which the same will be contested, and the names of two justices 
of the peace, who will officiate at the taking of the depositions." 2 
In a case involving the sufficiency of the notice of contest the 
supreme court of Ohio said : " The objection to the notice is two- 
fold : 1. It does not, if true, show a good case. 2. The 'points' 
relied upon are not specified with sufficient certainty. We think 
the notice was sufficient. It contains all that the statute requires, 
— notice that the election will be contested and a specification of 
the ' points ' relied upon. There is no analogy between such a 
notice and a declaration at law. The object of the notice is not 
to set forth a case, but to set forth the fact generally that a case 
will be made, and to indicate the kind of evidence, — not the effect 
or result of the evidence,- — by which it is to be made. The ' points ' 
to be specified are not required for the purpose of setting forth a 
1 good case,' nor for the purpose of informing the contestee that 
the attack will be successful, but to advise him at what points the 
attack will be made, in order that he may fortify and not be taken 
by surprise. The points so made should be reasonably specific 
and certain. If any of them are not, however, the remedy is by 
objecting to testimony taken under them, and not by motion to 
dismiss. We think the points specified in this notice were stated 
with sufficient particularity and definiteness to subserve the ob- 
ject of the statute, which was to limit the evidence of the contestor, 
and to apprise the contestee of the general nature of the objections 

1 State v. Lupton, 64 Mo. 415. 2 S. & C. Stat. 540, ss. 39-42. 



691 

to be made, so as to enable him to meet them, without unneces- 
sary expense and labor. We hold that the court did not err in 
overruling the motion." 1 

§ 833. The court will strike from the petition all irrelevant or 
general allegations, which cannot affect the merits of the case, or 
the general result. 2 Specifications charging a conspiracy, by the 
voters of certain precincts, to choose all the election officers from 
the same political party, will be stricken out. The court cannot 
inquire into the legality of a previous election of these officers. 3 
In a contested election case it is not material to aver, in the peti- 
tion, that the irregularities, alleged to have invalidated the election, 
were committed for the purpose of securing the defeat of the 
complainant, and the success of the respondent ; if this averment 
were material, it might be made by way of amendment. 4 

§ 834. Under a statute providing that the contestant " shall, 
within thirty days after the person, whose election is contested, is 
declared elected," 5 file his notice of contest, with the clerk of the 
proper court, the notice may be filed at any time before midnight 
of the last day, although the clerk is only required, by law, to keep 
his office open, from eight o'clock in the morning, until six o'clock 
in the evening. 6 In an election contest the time of the three days' 
notice, as to illegal votes, relied on, must be computed by includ- 
ing the first day and excluding the last ; this notice must be given 
three days before the trial of the case commences, whether any 
evidence is introduced on the first day of the trial or not. 7 Under 
a statutory requirement that the contestant " shall file with the 
auditor of the proper county, within ten days after such person 
has been declared elected, a written statement specifying the 
grounds of contest, verified by the affidavit of such elector," 8 it 
must be affirmatively shown, in the record, that such statement 
was filed within the time limited, or neither the commissioners, nor 
the circuit court, nor the supreme court, on appeal, will have juris- 
diction of the case. 9 Under a statute requiring the petition to be 
filed within ten days after the election, the petition is in time, if 

1 Howard v. Shields, 16 Ohio St. 184. 5 Eev. Stat. 111. 1874, c. 46, s. 113. 

2 Mann v. Cassidy, 1 Brewst. 11 ; 6 Zimmerman v. Cowan, 107 111. 631. 
Kneass' case, 2 Pars. 553. 7 Stinsonv. Sweeney, 17 Nev. 309. 

3 Mann v. Cassidy, 1 Brewst. 11 ; 8 Stat. Ind. May 4, 1852. 
Weaver v. Given, id. 140. 9 Farlow v. Hougham, 87 Ind. 540. 

4 Melvin's case, 68 Penn. St. 333. 



692 

filed within ten days after the result is declared by the return 
judges. 1 Under a statute requiring the notice of contest to be 
" given within ten days after the final action of the board " of 
canvassers, if the canvassers deliver the certificate of election to 
one of the candidates, on the fifth day of the month, but do not 
make out the copies thereof required, by law, to be deposited in 
the office of the clerk of the circuit court, until the sixth, the final 
action of the board will not be had until the sixth, and a notice of 
contest served on the sixteenth will not be served too late. 2 

§ 835. Under a statutory provision that " any person, desiring 
to contest the election of any person returned as elected to any 
office, within any county, in this state, may, within twenty days 
after the election, file a petition in the office of the clerk of the 
circuit court of such county, setting forth the grounds upon which 
said election is contested ; and the clerk shall, thereupon, issue 
a summons to the party whose election is contested, returnable to 
the next term of the court, which summons shall be served as in 
other cases," 3 the contestant brings his case within the original 
jurisdiction conferred by the constitution on the circuit court, by 
filing his petition in the clerk's office within twenty days after the 
election. A failure to issue the summons, until after the circuit 
judge orders a trial, in vacation, will not warrant the dismissal 
of the cause. 4 When certain forms are to be observed on a 
specified day after the election of councillors, without which their 
election is to be void, and the resulting vacancies are to be sup- 
plied by the council, the general election of councillors, even when 
no such vacancies occur, is not completed before that day ; and 
consequently the statutory period for complaining to the court 
of session cannot sooner commence. 5 The stamp act of July 1, 
1862, 6 did not make a revenue stamp essential to the validity of 
a notice of appeal, from the determination of the canvassers, 
to the court of common pleas, in a proceeding, by an elector, to 
contest an election, in pursuance of the statute. 7 In Mississippi, 
upon the sworn petition of a defendant, in a statutory contest, 
averring that the summons was not issued within the time pre- 

1 Stevenson v. Lawrence, 1 Brewst. 126. 4 Hall v. Lyon, 59 Miss. 218. 

2 Batman v. Megowan, 1 Mete. (Ky.) 5 Kay v. Magistrates, 3 Fac. Dec. 947. 
533. 6 12 Stat. 432. 

3 Cgde Miss. 1880, s. 150. 7 Scarff v. Foster, 15 Ohio St. 137. 



693 

scribed by law, and setting forth the facts, an alternative writ 
of prohibition may issue, returnable to the circuit court, notwith- 
standing the right of appeal, without supersedeas, to the same 
tribunal, under the statute. The contestant and justice, who 
appear in response to the alternative writ, cannot compel the peti- 
tioner to file a declaration, without, showing a disputed fact to be 
settled before the absolute writ is directed to issue ; and if they 
acquiesce in the hearing of his motion for an absolute writ, for 
want of an answer to his petition, they waive their prior motion 
for a declaration. 1 

§ 836. Under a statutory provision that any person, desiring to 
contest a county election, "may, within twenty days after the elec- 
tion, file a petition, before any justice of the peace of such county, 
setting forth the grounds upon which said election is contested ; 
and the justice shall thereupon issue a summons, to the party 
whose election is contested, returnable five days thereafter, which 
summons shall be served as in other cases," 3 the failure of the 
justice of the peace to issue, within twenty days after the election, 
a summons returnable within five days, establishes prim a facie the 
want of jurisdiction; and this prima facie case can only be over- 
come by averment and proof, on the part of the contestant, that 
the delay was not the result of his consent, or concurrence, or 
neglect to demand the writ in proper time. 3 The common law 
writ of quo warranto, and the substituted statutory proceeding, by 
information in the nature of quo warranto, are abrogated in Wis- 
consin, and the remedies, formerly obtainable in those forms, are 
to be obtained by a " civil action," under the code. The summons, 
in the civil action thus substituted, is to be directed to the defend- 
ant, and to be subscribed by the attorney-general. But when the 
defendant, after service, of the summons, obtains from the attorney- 
general, by stipulation, further time to plead, he waives all objec- 
tion to the form of the summons. 4 Under a statute declaring that 
"when any such elector shall choose to contest the right of any 
person, declared duly elected to such office, he shall, within forty 
days after the return day of such election, file, with the county 
clerk, a written statement, setting forth specifically" 5 the matters 

1 Crisler v. Morrison, 57 Miss. 791. 4 State v. Messmore, 14 Wis. 125. 

2 Stat. Miss. 1878, c. 45, s. 1. 5 Wood's Cal. Dig. p. 281, s. 56. 

3 Crisler v. Morrison, 57 Miss. 791. 



694 

therein mentioned, a party is not deprived of his right to contest 
because the canvassers assumed to meet, more than forty days 
after the return of the legal votes, and, acting upon supplementary 
returns, declared a person to be elected, who was not elected by 
the legal votes first returned. For the purposes of the contest 
the period of forty days begins to run from the date of those 
returns on whi&h the canvass, in controversy, was made. On the 
other hand, the unsuccessful party does not lose his right of appeal 
because his opponent commenced proceedings in the court below 
more than forty days after the return of the legal votes. 1 

§ 837. The statutes of Indiana contain the provision that the 
county auditor, when the notice of contest is filed, " shall issue a 
notice to the contestee to appear at the time and place specified 
in the notice to the commissioners, which, with a copy of such 
statement, shall be delivered to the sheriff of the county, who shall, 
within five days thereafter, serve the same on the contestee, by 
delivering to him a copy of such notice and statement, or leaving 
a copy thereof at his last usual place of residence." 2 " The sum- 
mons shall be served either personally on the defendant, or by 
leaving a copy thereof at his usual or last place of residence. An 
acknowledgment, on the back of the process, or the voluntary 
appearance of a defendant, is equivalent to service." 3 " The proof 
of the service of any process issued by the court, or of any notice 
required to be served on any party, shall be as follows : First, if 
served by the sheriff his certificate thereof," &c. 4 " No summons, 
or the service thereof, shall be set aside, or be adjudged insuffi- 
cient, where there is sufficient substance about either to inform 
the party, on whom it may be served, that there is an action insti- 
tuted against him in court." 5 The sheriff's return in a contested 
election case was in the following form : " Oct. 18, 1876. Served 
the within summons on the within named deft., Jonathan Hadley, 
by reading, and delivered to said Hadley a certified copy of com- 
plaint, as filed in auditor's office. Thos. H. Dixon, Sh'ff." 

The contestee insisted that the service and return were not suf- 
ficient to give the courts below jurisdiction of his person. But the 
court said : " It is very clear to our minds that this eighteenth 

1 Day v. Jones, 31 Cal. 261. 4 Eev. Stat. Ind. 1876, 154. 

2 Eev. Stat. Ind. 1876, 451. 5 Id. 49. 

3 Id. 47. 



695 

section, in so far as it prescribes either the time within which, or 
the mode in which, the service shall be made, is purely directory 
to the sheriff of the time and manner in which he shall discharge 
his duties in such cases. It never was intended by this section, 
as we construe it, that the right of any one to a public office, to 
which he was eligible and had been lawfully elected, should be 
made dependent, in anywise, upon the good faith, diligence, or 
intelligence of the sheriff of the county, it might be of a personal 
or political opponent. The statute points out to the sheriff the 
time and the manner in which service may be made ; but, in our 
opinion, it will not do to say, in the absence of a positive provi- 
sion to that effect, that service after the time, or in some other 
recognized mode, would not be sufficient service. " We know 
of no good reason why the service of the summons or notice, in 
this case, by reading to the appellant, the contestee, should not be 
held to be a valid and sufficient service to give the commissioners' 
court complete jurisdiction of the appellant's person. There was 
certainly ' sufficient substance ' in the service of said summons or 
notice to inform the appellant, the contestee, that there was a suit 
instituted against him in the commissioners' court. We are aware 
that the conclusions we have reached, on the subject now under 
consideration, are in conflict with some of the points decided in 
the case of The State, ex. rel. Combs v. Hudson, 37 Ind. 198 ; and, 
therefore, to the extent of such conflict, the case cited is over- 
ruled." 1 

§ 838. A statute of the state of Illinois contained the following 

1 Hadley v. Gutridge, 58 Ind. 302. " Witness my hand and official seal, 

In State v. Hudson, 37 Ind. 198, the this 21st day of October, 1868; 

"O T BAKER 
following writ was served upon the con- "Auditor Green County." 

testee : 

The writ bore the following sheriff's 

" State of Indiana, Green Co. ss : return : 

" The State of Indiana to the Sheriff of << Seryed on the within named John J. 

Green County greeting : Combs, by reading and delivering to him 

" You are hereby commanded to sum- a copy of the order, dated this 23d day 

mon John J. Combs to appear before the of October, 1868. 

board of commissioners of said county, " F. M. DUGGER, 

on the 7th day of November, 1868, at the " Sheriff. 

court house, in Bloomfield, to answer in "By James Hareah, Deputy." 

a case of contested election for county The CQurt heM the geryice invaM and 
commissioner, first district, wherein John 

R. Hudson is contestor and John J. said: 

Combs is contestee. Herein fail not and " The sheriff does not say that he de- 
have then and there this writ. livered a copy of the notice, or of the 



696 

provisions : " The person desiring to contest such election shall, 
within thirty days after the person, whose election is contested, is 
declared elected, file, with the clerk of the proper court, a state- 
ment in writing, setting forth the points on which he will contest 
the election, which statement shall be verified, by affidavit, in the 
same manner as bills in chancery may be verified. Upon the filing 
of such statement, summons shall issue against the person, whose 
office is contested, and he may be served with process, or notified 
to appear, in the same manner as is provided in cases in chancery. 
Evidence may be taken in the same manner and upon like notice 
as in cases in chancery. The case shall be tried in like manner as 
cases in chancery. The judgment of the court, in cases of con- 
tested election, shall confirm or annul the election, according to 
the right of the matter, or, in case the contest is in relation to the 
election of some person to an office, shall declare as elected the 
person who shall appear to be duly elected. In all cases of con- 
tested elections, in the circuit courts or county courts, appeals may 
be taken to the supreme court, in the same manner and upon the 
like conditions as is provided by law for taking appeals in cases 
in chancery from the circuit courts." 1 It was held that the object 
of this statute was to place the contest on the same footing as a 
case in chancery, and that it was, to all intents, a chancery pro- 
ceeding, subject to all the rules governing such proceedings ; and 
that the statement or bill of the contestant might be amended, 
before or after answer, as in ordinary chancery proceedings. 3 

§ 839. A specification, in an answer, may be amended, in Penn- 
sylvania, if the amendment do not introduce new matter. But 
new matter cannot be introduced, although it was omitted by mis- 
take. A specification may be struck out, after the taking of testi- 
mony has commenced, if the right of objection be reserved. But 
regularly, the motion to strike out must be submitted before going 
into the evidence. Specifications, which charge the reception of a 

statement, but that lie served the notice the board of commissioners had acquired 

by reading and delivering a copy of the no jurisdiction of the defendant." 
order. What is intended by the order 

we cannot say ; but it is manifest that no a Kev. Stat. 111. 1874, c. 46, ss. 113, 114, 

order, a copy of which could be deliv- 115 \iq 119 123. 

ered, had been made, for the commis- 2 '^^ ^ 7g m 17Q Talki ton 
sioners had not then met to make any . „ ,J- -re- 
order. The reply shows that the service «• Turner, 71 id. 234; McKmnon ®. 
was not such as the statute requires, and People, 110 id. 305. 



697 

large number of votes, without proof, from persons not on the as- 
sessor's list, will not be struck out ; nor will specifications charging 
disregard of challenges and the expulsion of the regular officers. j 
A statute of Indiana provided that the board of commissioners, 
constituted for the trial of contested election cases, should be 
" governed, in such trials, by the rules of law obtaining in circuit 
courts." 2 It was held that by this provision it was intended 
that the board of commissioners, in the examination and deter- 
mination of all questions, either of law or of fact, arising in the 
progress of a contested election case, should be governed by the 
rules of law applicable to such questions obtaining in the circuit 
courts ; and that a motion to set aside the process and the service 
thereof, for insufficiency, or irregularity, was to be determined by 
those rules ; and also that a motion, in such a proceeding, before 
the county board, on a special appearance for that purpose, to 
quash the notice of contest, or to set aside the process and the 
service thereof, on the ground that they were " irregular, defec- 
tive, and insufficient," was too vague, uncertain, and indefinite, 
and pointed out no valid ground of objection. If, after such 
motion is overruled, the contestee enter a full appearance, he may, 
on appeal to the circuit court, on special appearance, renew the 
motion made by him before the county board, but cannot make a 
new and different motion to quash the notice of contest. 3 

§ 840. Where a petition is defective, in form or substance, it 
may be amended, if the application be made at the earliest possi- 
ble opportunity. Such an amendment is allowed at common law, 
by virtue of the power, which a court of record possesses, to allow 
amendments in furtherance of public justice. When there is a 
charge of fraud, but no averment showing how the fraud would 
affect the result, the defect may be remedied by amendment. 4 The 
inquiry involved, in a contested election case, is one which deeply 
concerns the public. The question is broader than the mere claim 
of an individual to the office in controversy. It is whether the 
popular will has been, or is about to be, defeated, or thwarted, by 
mistake, or fraud. If therefore the statement of the grounds of 
contest lack the clearness and distinctness of allegation always 
desirable in judicial proceedings, it is not, on that account, to be 

1 Thompson v. Ewing, 1 Brewst. 67. 3 Hadley v. Gutridge, 58 Ind. 302. 

2 Kev. Stat. Ind. 1876, 451. 4 Kneass' case, 2 Pars. 553. 



698 

peremptorily dismissed ; an opportunity to amend should be 
afforded, to the end that the points, in controversy, may be 
developed, and the merits of the case determined. It may become 
the duty of the court, in the progress of the investigation, to pro- 
tect parties from surprise ; and, should material proof be offered, 
which reasonable diligence might not have anticipated, an oppor- 
tunity should be afforded to meet it. The public interests 
imperatively require that the ultimate determination of the contest 
should, in every instance, if possible, reach the very right of the 
case. 1 But in England a petition against the election of a town 
councillor cannot, after the expiration of the twenty-one days 
limited for its presentation, be amended by the introduction of a 
substantially new charge. A petition complaining of the employ- 
ment of registered burgesses, of the " north ward," as canvassers 
for that ward, cannot, after the expiration of the twenty-one days, 
be amended by adding " and other wards." 2 Under the statute of 
Minnesota a notice of contest is not amendable. 3 When the 
parties to a contested election appear before the court, or officer 
who is invested by statute with jurisdiction to hear and determine 
the contest, and, without objecting to the sufficiency, or regularity, 
of the preliminary proceedings, by which the contest was initiated, 
engage in a trial on pleadings and proof, defects in such prelimi- 
nary proceedings are waived, and cannot be set up, in a subsequent 
action, founded on the judgment. 4 

§ 841. Questions respecting the necessity for an answer, in a 
statutory contest, or the form or substance of the answer, when 
required, or the time of riling it, are to be determined by the stat- 
utes creating the tribunals. The law of California was this : " Such 
court shall be governed, in the trial and determination of such 
contested election, by the rules and evidence governing the deter- 
mination of questions of law and fact, so far as the same may be 
applicable ; and may dismiss the proceedings, if the statement of 
the cause, or causes, of contest is insufficient, or for want of prose- 
cution. After hearing the proofs and allegations of the parties, 
the court shall pronounce judgment, in the premises, either con- 
firming, or annulling and setting aside, such election, according 
to the law and right of the case." 5 A motion to dismiss the 

1 Minor v. Kidder, 43 Cal. 229. 4 Davidson v. Woodruff, 63 Ala. 432. 

2 Maude v. Lowley, 9 L. R. C. P. 165. 5 Wood's Dig. p. 382, art. 2163, s. 63. 

3 Ford v. Wright, 13 Minn. 480. 



699 

proceeding, in a contested election case, having been overruled, the 
defendant declined to answer the notice of contest. Thereupon 
the court, without proof by either party, rendered judgment annul- 
ling the election of the defendant. But the supreme court, revers- 
ing the judgment and remanding the cause, held that the public 
was interested in the contest ; that it was not a matter solely 
between the parties to the record ; that the popular will was not 
to be defeated, by a mere failure of a party to respond to charges 
made against him by an individual elector ; that it was not suffi- 
cient that ample grounds of contest were specified in the notice, 
but their truth was to be established, by proof, before an election 
could be annulled ; and that if no proof should be offered, on 
either side, it would be necessary to dismiss the contest. 1 A 
statutory provision that " on the trial of a petition under this act, 
complaining of an undue return, and claiming the seat for some 
person, the respondent may give evidence to show that the elec- 
tion of such person was undue, in the same manner as if he had 
presented a petition complaining of such election," 3 applies only to 
cases of recriminatory charges, not to a case where neither of the 
parties, or their agents, is charged with any wrongful act. 3 Under a 
statute providing as follows : " Nor shall any election be set aside for 
illegal votes, unless the number thereof given to the contestee, if 
taken from him, would reduce the number of his legal votes below 
the number of legal votes given to some other person for the same 
office," 4 it was held that an answer, alleging, in substance, that 
illegal votes had been cast and counted for the contestant, and 
that the contestee had received a majority of the legal votes cast, 
was sufficient. 5 

§ 842. The form and substance of the reply, when authorized 
or required, are determined by statutory provisions. Under a 
statute requiring the contestant to file in the proper office, within 
twenty days after the canvass of the votes, a written notice, setting 
forth " the particular causes of contest," and providing that " when 
the reception of illegal or the rejection of legal votes is alleged, 
as a cause of contest, the names of the persons who so voted, or 
whose votes were rejected, with the township where they voted, 

^Searcy «. Grow, 15 Cal. 117. "Rev. Stat. Ind. G. & H. 318. 

2 Stat. Dominion, 41 Vict. c. 6, s. 66. 5 Allen v. Crow, 48 Blackf . 302. 

3 Jenkins v. Brecken, 7 S. 0. Canada, 
247. 



TOO 

or offered to vote, shall be set forth in the statement," but making 
no provision for a reply, the contestant alleged a miscount, and 
demanded a recount, the contestee answered, denying the mis- 
count and also alleging illegal votes for the contestant, naming 
the voters. The contestant, in reply to this second defence, alleged 
that illegal votes had been cast for the contestee. The court held 
that, whether the contestant could, or could not, by way of amend- 
ment to his original notice, aver, before the expiration of the 
twenty days limited by law, that illegal votes had been cast for 
the contestee, he could not set up such an averment as a reply 
to the contestee's answer. 1 In the notice of contest of an election 
for a county office, for which the contestant and contestee were 
the only candidates, the contestant alleged, as the ground of con- 
test, the misconduct of the judges, clerks, and canvassers, in 
certifying erroneously and knowingly that the contestee received 
a larger number of votes than the contestant, and that the con- 
testee was elected, when in fact the contestant was elected. The 
contestee answered, admitting the mistake, in his favor, as to 
the number of votes alleged by the contestant, but averring that 
the contestant received a number of illegal votes greater than the 
number so wrongfully certified for the contestee. The contestant 
replied, alleging that as many illegal votes were received by the 
contestee as by the contestant. It was held that the notice of 
contest and answer were each sufficient on demurrer ; that the 
reply of the contestant was not a departure ; and that it was error 
to reject evidence in support of it. 2 When the contestee, in his 
answer, denies the allegations of the notice of contest, and also 
sets up an additional defence of new matter, as, for example, 
illegal votes for the contestant, and the contestant replies to such 
additional defence, by an averment of new matter, as, for example, 
illegal votes for the contestee, if the contestee disprove the allega- 
tions of the notice of contest, and abandon the new matter of his 
answer, the contestant cannot avail himself of the new matter set 
up in his reply, without incorporating it, by way of amendment, 
into his notice of contest. 3 

§ 843. An order having been made, by a judge, for the delivery 
of a bill of particulars, by the petitioner, to. the respondent, stat- 

1 Baker v. Kansas, 17 Iowa, 341. 3 Baker v. Long, 17 Kan. 341. 

2 Dobyns v. Weadon, 50 Ind. 298. 



701 

ing by whom, when, and where, persons alleged to have been 
bribed and treated, had been so bribed and treated, and by whom, 
when, and where, canvassers had been employed, and moneys 
paid for the conveyance of voters to the polls, the order was 
allowed, by the court, with the addition of the words, " so far as 
known." 1 Under an act of parliament authorizing an order for 
the inspection of " rejected ballot papers " " to be granted by such 
court, on being satisfied, by evidence on oath, that the inspection 
or production of such ballot papers is required, for the purpose 
of instituting, or maintaining, a prosecution for an offence, in 
relation to ballot papers, or for the purpose of a petition question- 
ing an election or return," 3 leave was given, by the court of com- 
mon pleas in Ireland, to the Clerk of the Crown and Hanaper, to 
open the packet of " rejected ballot papers," and to permit the 
petitioner and his agents to inspect certain ballot papers, which 
had been rejected by the returning officer on the ground that they 
bore " writing, or marks, by which the voters could be indentified," 
requiring " every precaution to be taken, by the Clerk of the Crown 
and Hanaper, not to permit the inspection of the number, on the 
ballot papers, which corresponds with the number on the counter- 
foils." 3 

§ 844. A statutory provision that " the trial of every election 
petition shall be commenced within six months from the time when 
such petition has been presented, and shall be proceeded with, 
de die in diem, until the trial is over, unless on application, sup- 
ported by affidavit, it be shown that the requirements of justice 
render, it necessary that a postponement of the case should take 
place," 4 does not require the trial to be commenced within six 
months, in order to authorize a postponement, but permits the 
commencement of the trial to be postponed beyond that time. 5 

§ 845. It was provided by statute as follows : " All cases .of 
contested election of any of the officers not provided for in the 
constitution, or in the preceding section, shall be decided by the 
judges of the several circuit courts, each in his respective circuit, 
and by the superior court of Baltimore city." 6 " Each judge of 

1 Kegina v. Beardsall, 45 L. J. M. C. 4 Domin. Stat. 38 Vict. c. 10, s. 2. 
157. 5 Waggoner v. Shibley, 39 U. C. Q. B. 

2 35 & 36 Vict. c. 33, p. 1, Sch. 1, r. 40. 131. 

3 Macartney v. Corry, Ir. R. C. L. 190. 6 Code Md. art. 35, s. 53. 



702 

the circuit court and of the superior court of Baltimore city may 
adopt such mode of proceeding, in cases of contested elections, 
and prescribe such rules for taking testimony, and adjudging costs, 
as to him shall seem most satisfactory and least expensive." 1 It 
was held that the jurisdiction of the superior court of Baltimore 
city, in cases of this kind, was a special and exclusive jurisdiction, 
and, there being no provision of law for the right of appeal, its 
judgment, in the premises, was final and conclusive. 2 Under a 
statute, declaring that " the board of aldermen, the common coun- 
cil, and the school committee shall have authority to decide upon 
all questions relative to the qualifications, elections, and returns 
of their respective members," 3 the decision of the school com- 
mittee, declaring a seat in the board to be vacant, for want of 
legal election, and qualification, is conclusive, and cannot be re- 
vised, by the supreme court, upon a petition for a writ of manda- 
mus, although the school committee states, in its record, as the 
sole reason for its decision, that the person excluded is a woman, 
whereas women are not, under the constitution, disqualified for 
membership of the school board. 4 When a petition claims the 
seat for one of the defeated candidates, and the judge, on the 
trial of the petition, decides that such candidate was duly elected, 
his decision is final, and a petition, against the return of such 
candidate, cannot subsequently be presented under 31 & 32 Vict, 
c. 125. 5 

§ 846. The state constitution contained the following clause : 
" The legislature shall make provision for all cases of contested 
elections of any of the officers herein provided for;" 6 and pro- 
vision was made, accordingly, for certain cases, by statute, as 
follows : " All contested elections, for comptroller and commis- 
sioner of the land office, shall be decided by the house of dele- 
gates." 1 It was held that the determination of such a contest, by 
the house of delegates, was final and conclusive, whatever were 
the grounds on which it was based. 8 A city charter contained the 
following provision : "A certificate of election is primary evidence 

1 Code Md. art. 35, s. 54. 5 Waygood v. James, 4 L. R. C. P. 361. 

2 Warfield v. Latrobe, 46 Md. 123. 6 Const. Md. art. 3, s. 48. 

3 Stat. Mass. 1854, c. 448, s. 24. 7 Gen. Laws Md. art. 35, s. 52. 
4 Peabody v. School Committee, 115 B State v. Jarrett, 17 Md. 309. 

Mass. 383. 



703 

of the facts therein stated ; but the council is the final judge of 
the qualifications and election of the mayor, and of its own mem- 
bers, and, in case of a contest between two persons claiming to be 
elected thereto, must determine the same." In a contest before 
the common council, for the office of mayor, the council counted 
the ballots, and declared the vote a tie. On an application for 
a writ of review, the contestant claimed that the council erred, 
in their count of the ballots, and that the ballots, if legally and 
properly counted, would show that a majority of the votes were 
cast for him. But the supreme court held that the decision of the 
council was final and conclusive. x A territorial statute contained 
the following provision : " When any candidate shall desire to test 
the validity of any election, or the right of any person, declared 
to be duly elected, to hold and exercise the office of coroner, 
or county commissioner, or any county officer, such candidate, so 
contesting the election as aforesaid, shall proceed, in all respects, 
in the manner prescribed in the foregoing section ; except that 
said justices before named, after hearing and examining all testi- 
mony produced as provided in the foregoing section, and having 
summed up the same, shall decide which of the said candidates 
shall, in their opinion, have been duly elected ; and said decision 
shall be final ; and certify the same to the clerk of the board of 
county commissioners of the proper county, who shall thereupon 
make out, and deliver to the successful party, a certificate of his elec- 
tion ; and all necessary costs, accruing in any contested election, 
shall be paid by the unsuccessful party, to be recovered by action 
of debt, as in other cases." 2 In an action brought, in the name 
of the territory, to oust an incumbent of the office of sheriff, it 
was held, by the supreme court of the territory, that the inquiry, 
by the three justices, was in the nature of an inquisition ; and 
that their determination was not conclusive on the court. 3 

§ 847. When the constitution declares that a judgment rendered, 
or final order made by the court of common pleas, shall be sub- 
ject to review, by a superior court, and declares that " an order 
affecting a substantial right, made in a special proceeding, is a final 
order, which may be thus vacated, modified, or reversed," the find- 
ing and judgment of a court of . common pleas, made in a case of 

1 Simon v. Common Council, 9 Oregon, 2 Stat. Oregon, 1851, 109, 21. 

437. 3 Territory v. Pyle, 1 Oregon, 149. 



704 

contested election, brought before it by appeal from the canvass- 
ers, in pursuance of the statute, are subject to review in the 
superior court. 1 The constitution of California contained the 
following section : " The supreme court shall have appellate juris- 
diction in all cases in equity ; also in all cases at law, which involve 
the title or possession of real estate, or the legality of any tax, 
import, assessment, toll, or municipal fine, or in which the demand, 
exclusive of interest, or the value of the property in controversy, 
amounts to three hundred dollars." 2 The supreme court of that 
state held that the section conferred upon the court appellate 
jurisdiction, in contested election cases. 3 In West Virginia an 
election contest, before the county court, may be reviewed, on cer- 
tiorari, by the circuit court ; and the decision of the circuit court 
may be reviewed by the supreme court of appeals, on writ of 
error. 4 A contested election case is not appealable, from the 
district court, under a statute providing that the court, " after a 
full and fair investigation of such evidence, shall decide to whom 
the office belongs ; or should the election appear to have been 
illegally and fraudulently conducted, to order a new one, as the 
case may be ; and the costs of suit shall be taxed by the court, 
according to the laws governing costs in other causes ; and such 
causes shall have precedence over all other causes." 5 The deter- 
mination of the result of an election does not pertain to the 
ordinary jurisdiction of courts of justice. 6 The jurisdiction of 
the high court, in registration and election cases, is final, unless 
special leave to appeal is given. 7 The court of common pleas, in 
England, has jurisdiction, on a petition questioning the election, 
to review the decision of the mayor, sustaining an objection to 
the nomination, on the ground that the name of the candidate 
was not on the previous burgess roll. 8 In Texas the supreme 
court cannot take jurisdiction of a statutory contest on appeal. 
Such contest is not a suit, complaint, plea, or civil case, in the 

1 Wright v. Pinkerton, 15 Ohio Stat. 4 Dryden v. Swinburne, 20 W. Va. 89. 
573. See Swinburne v. Smith, 15 id. 483. 

2 Const. Cal. art. 6. s. 4. 5 Stat. Tex. May 8, 1873, c. 50, s. 2. 

3 Knowles v. Yates, 31 Cal. 82. This 6 Eogers v. Johns, 42 Tex. 339. 
decision was affirmed in Day v. Jones, 7 44 and 45 Vict. c. 68, s. 14. 

31 Cal. 261, was disapproved in Hough- y Bridge v. Andrews, 39 L. T. N. S. 166. 

ton's case, 42 id. 35, and was approved 
in K.E. Co. v. Galgiani, 49 id. 139. 



705 

sense of the constitution, the jurisdiction of the supreme court 
being restricted to " civil cases," of which the district courts have 
original or appellate jurisdiction. 1 

§ 848. The principle that when the jurisdiction of a court is 
made by statute to depend upon the time of giving notice, or of 
taking appeals, the requirement is mandatory is applicable to con- 
tested election cases. 2 When it is provided, by law, that the 
county canvassers shall declare the person, having the highest 
number of votes for each office, duly elected, subject to an appeal 
to the court of common pleas, in case of a contested election, " pro- 
vided notice of such appeal to the said court be entered with the 
clerk thereof, within twenty days from the day of declaring the per- 
son having the highest number of votes as aforesaid," 3 if the cer- 
tificate of the canvassers, taken in connection with the returns 
and abstract, present no ambiguity, or uncertainty, as to the date 
of the declaration, parol evidence, in the absence of fraud, is 
inadmissible for the purpose of fixing the time for taking an 
appeal. 4 

§ 849. On appeal from the judgment of a county court, in a 
statutory proceeding to contest an election, it is not the rule that 
the judgment will be presumed to have been sustained by the 
proofs, unless the bill of exceptions purports to contain all the 
evidence; but the proceeding is to be regarded as in the nature 
of a chancery proceeding, and the rule in chancery should apply 
that, to uphold the decree, it must appear, from the record, that 
it is supported by the proofs. 5 When the discharge of a duty, 
imposed by law, is confided to a special commission, and the duty 
is, in its nature, judicial, the courts will not collaterally revise the 
acts of the commissioners, or hold void the final determination 
made by them, in the exercise of their discretion or judgment. 6 
A. having been returned as elected to the office of district attorney, 
the court of quarter sessions decreed that his election was invalid, 
and that B. was elected. A. removed the record to the supreme 
court, by certiorari, pending which, and during the term at which 
the decree was made, by permission of the quarter sessions, he 

1 Williamson ». Lane, 52 Tex. 335. 4 Taylor v. Wallace, 31 Ohio St. 151. 

2 Bowen v. Hixon, 45 Mo. 340 ; Cas- 5 Kingery v. Berry, 94 111. 515. 

tello v. Coust, 28 id. 278. 6 People v. Collins, 19 Wend. 56 ; Peo- 

3 Stat. Ohio, S. & S. 333. pie v. Scannell, 7 Cal. 432, 

45 



706 

filed a petition, alleging " arithmetical and clerical errors, in the 
table " on which the decree was based, averring that he had been 
elected, and praying for a re-examination, and for a declaration 
of the result in his favor. The original decree was affirmed, by 
the supreme court, and subsequently the court of quarter sessions 
made the examination, and decreed that A. was elected. It was 
held that the court of quarter sessions had power to make the 
latter decree, after the close of the term at which the former decree 
was entered ; that the supreme court, in affirming the decree, had 
not determined the merits of the case, but had merely decided 
that the court of quarter sessions had proceeded in due form of 
law. 1 

§ 850. Under a statute, providing that, " from all decisions of 
the several boards of commissioners, there shall be allowed an 
appeal to the circuit court," 2 an appeal from an order of a board, 
declaring a vacancy in the office of county recorder, and filling the 
vacancy, loj appointment, is to be tried, in the circuit court, on its 
merits. And, in the absence of proof to the contrary, the pre- 
sumption, in the supreme court, is that the appeal was so tried. 3 
It was provided, by statute, as follows : " In all contested elections, 
before the judge of probate, an appeal lies to the circuit court, 
within five days thereafter. From the judgment of the circuit 
court, on all appeals taken under the preceding section, and on all 
contested elections before the chancellor, or circuit court, an appeal 
lies to the supreme court, withing five days thereafter." 4 It was 
held that all appeals, in the circuit court, as well as in the supreme 
court, were to be tried,' not de novo, but on the record alone. 5 
When the court below makes special findings of fact, and by one 
of them, to which the contestant does not except, the only matter of 
contest alleged in the notice is found against the contestant, it is 
conclusive, in subsequent proceedings in error. 6 When a special 
statutory jurisdiction of cases of contested elections is conferred 
upon an inferior tribunal, and an appeal is taken from an order 
declaring the election void, and the office vacant, the appellate 
court can only decide whether the case, as tried and determined, 

1 Sheppard's case, 77 Penn. St. 295. 4 Code Ala. 1852, p. 116, ss. 334, 335. 

2 Rev. Stat. Ind. 1831, p. 135, s. 28. 8 Griffin v. Wall, 32 Ala. 149. 
3 Hedley v. Commissioners, 4 Blackf. 6 Baker v. Long, 17 Kan. 341. 

116. 



707 

was within tlie limits of the special jurisdiction conferred, and, if 
it was, must dismiss the appeal. 1 

§ 851. A statute, regulating appeals of contested election cases, 
contained the following provision : " Within twenty days after 
the filing of such appeal bond, the auditor shall make out a com- 
plete transcript of the proceedings of said board relating to the 
proceeding appealed from, and shall deliver the same, and all the 
papers and documents filed in such proceeding, and the appeal 
bond, to the clerk of the court to which the appeal is taken." 2 
The county commissioners having dismissed a proceeding to con- 
test the election of a county officer, the contestant prayed an 
appeal to the circuit court, and, within the time limited by law, filed 
an appeal bond, which was approved by the county auditor. But 
the auditor failed to file the transcript and papers, in the office of 
the clerk of the circuit court, before the expiration of two months 
after the bond was filed. It was held, by the supreme court of the 
state, that this delay of the auditor was not a valid ground for 
the dismissal of the appeal by the circuit court. 3 Under the 
same statute A. contested the election of B. to the office of county 
treasurer. B. appealed to the circuit court and, in due time, 
filed a bond, which contained no penalty, with the auditor, who 
failed to file the appeal papers, in the office of the clerk of the 
circuit court, before the expiration of fifty days from the day of 
filing the bond. In the circuit court B. moved to dismiss the cause ; 
pending which motion A. moved to dismiss the appeal. The latter 
motion was sustained; and thereupon B. tendered a proper bond 
and asked for a reinstatement of the appeal, which was refused. 
It was held, by the supreme court, that the motion to dismiss the 
appeal had precedence over the motion to dismiss the cause ; that 
the failure of the auditor to file the appeal papers, within twenty 
days after the appeal was taken, was not a sufficient ground for 
the dismissal of the appeal ; that the want of a penalty in the ap- 
peal bond was good cause for dismissing the appeal ; and that the 
offer to file a new bond, if allowable at any time, came too late 
after the appeal had been dismissed. 4 

§ 852. Pending an appeal, from the district court of the state 
to the supreme court, involving the right to the office of state 

1 Handy v. Hopkins, 59 Md. 157. 3 Day v. Herod, 33 Ind. 197. 

2 Kev. Stat. Ind. G. & H. 253. 4 Barnett v. Gilmore, 33 id. 199. 



•708 

treasurer, where neither party is in full possession of the office, 
safes, and public money, that party, in whose favor the judgment of 
the district court has been pronounced, must be regarded as the 
treasurer of the state pro tempore. x Under a statutory provision 
that, " if judgment be rendered in favor of such claimant, he 
shall proceed to exercise the functions of the office, after he has 
qualified as required by law," 2 a supersedeas bond, filed on appeal 
to the supreme court from a judgment in favor of the claimant, 
stays proceedings for the enforcement of the judgment for costs, 
but does not defer the relator's right to take possession of the 
office, no process being required to execute the judgment in that 
respect ; nor will an action be maintainable, on such bond, for the 
recovery of the emoluments of the office pending the appeal. 3 

§ 853. Where the summary remedy, to compel the delivery of 
books and papers withheld by a person whose term of office has 
expired, is given only to the "qualified successor" in the office, 
and the petition is filed by a person who has been declared entitled 
to the office, after a protracted contest, but his term of office 
will expire on the earliest day at which the petition can be brought 
to a hearing, and the person by whom the books and papers have 
been unlawfully withheld, has been elected for the succeeding 
term, the petitioner is not entitled to the relief prayed." 4 

1 Honey v. Davis, 38 Tex. 63; Aliens. 3 Jayne v. Drorbaugh, 63 Iowa, 711. 
Eobinson, 17 Minn. 90. 4 Beebe v. Kobinson, 64 Ala. 171. 

2 Code Iowa, § 3353. 



CHAPTER XXXVI. 

QUO WARRANTO. 

Secs. Secs. 

1. Difference between the writ of 7. Plea or return ; form ; reply ; 

quo warranto, and the informa- demurrer . . . 894-897 

tion in the nature of a quo war- 8. Motion to dismiss or quash . 898 

ranto .... 854,855 9. Defence .... 899-901 

2. When an information is or is not 10. Kesignation of defendant, or 

the proper remedy . . 856-861 expiration of term . 902 



3. Jurisdiction . . . 862-868 

4. Parties .... 869-875 

5. Information ; application ; affi- 

davit .... 876-881 

6. Allowance ; form ; process ; rule 

to show cause ; notice . 882-893 



11. Trial .... 903-906 

12. Judgment . . . 907,908 

13. New trial . . . .909 

14. Appeal ; error . . . 910 



§ 854. The proceeding by which the title to an office was adjudi- 
cated, at common law, was the writ of quo warranto. A writ of 
quo warranto was in the nature of a writ of right for the king, 
against him who claimed or usurped any office, franchise, or lib- 
erty, to inquire by what authority he supported the claim, in order 
to determine the right. 1 It lay also in case of non-user, or long 
neglect, of a franchise, or misuser, or abuse of it ; being a writ 
commanding the defendant to show by what warrant he exercised 
such a franchise, having never had any grant of it, or having for- 
feited it by neglect or abuse. This writ was originally returnable 
before the king's justices at Westminster, but, afterwards, only 
before the justices in eyre by virtue of the statutes of quo warranto, 
6 Edw. 1, c. 1, and 18 Edw. 1, st. 2 ; 2 but after those justices gave 
place to the king's temporary commissioners of assize, the judges 
on the several circuits, this branch of the statute lost its effect ; 3 
and writs of quo warranto were prosecuted and determined before 
the king's justices at Westminster. And in case of judgment for 
the defendant, he had an allowance of his franchise ; but in case 
of judgment for the king, since the party was entitled to no such 
franchise, or had disused or abused it, the franchise was either 

1 Finch L. 322 ; 2 Inst. 282. 3 2 Inst. 498. 

2 2 Inst. 498 ; Rast, Entr. 540. 

709 



710 

seized into the king's hands, to be granted out again to whomever 
he should please ; or if it were not such a franchise as might sub- 
sist in the hands of the crown, there was merely judgment of 
ouster, to turn out the party who usurped it. 1 The judgment on 
a writ of quo warranto (being in the nature of a writ of right) was 
final and conclusive, even against the crown. 3 This quality of the 
judgment and the length of the process probably occasioned that 
disuse into which it is now fallen, and introduced a more modern 
method of prosecution, by information filed in the court of king's 
bench by the attorney-general, in the nature of a writ of quo war- 
ranto ; wherein the process is speedier and the judgment not quite 
so decisive. This is properly a criminal method of prosecution, 
as well to punish the usurper by a fine for the usurpation of the 
franchise, as to oust him, or seize it for the crown ; but it has long 
been applied to the mere purposes of trying the civil right, seizing 
the franchise, or ousting the wrongful possessor ; the fine being 
nominal only. 3 Although it is said that the writ of quo warranto 
lies against him who claims or usurps any office, a limitation is 
implied by the fact that it is in the nature of a writ of right for the 
king. Upon this principle, when an application was made for a 
quo warranto information, to try the validity of an election to the 
office of churchwarden, Lord Kenyon said that this was not an 
usurpation of the rights, or prerogatives of the crown, for which 
only the old writ of quo warranto lay ; and that an information in 
nature of a quo warranto could only be granted in such cases. 
And the writ was also refused in a case of forfeiture of a recorder's 
place. 4 In the United States the proceeding to try an alleged 
usurpation of an office, or franchise, is by an information in the 
nature of a quo warranto, or some statutory substitute, to which 
the same principles are applicable. 5 

§ 855. The original common law writ of quo warranto was a 
civil writ, at the suit of the crown, and not a criminal prosecution, 6 
and the first process was the summons. 7 This writ, however, fell 
into disuse, in England, centuries ago, and its place was supplied 

1 Cro. Jac. 259 ; 1 Show. 280. 5 3 Blackst. Comm. (Cooley's) 264, 

2 Rex v. Trinity House, 1 Sid. 86; 2 note. 

Show. 47 ; 12 Mod. 225. 6 Ames v. Kansas, 111 U. S. 449 ; Rex 

3 3 Blackst. Comm. 262. v. Marsden, 3 Burr, 1812. 

4 3 Blackst. Comm. (Cooley's) 262, 7 Com. Dig. Quo. War. A ; id. c. 2. 
note. 



711 

by an information in the nature of a quo warranto, which, 
although, in its origin, it was a criminal method of prosecution, 
long before the American revolution lost its character, as a crimi- 
nal proceeding, in everything except form, and was thenceforth 
restricted in its application to the purposes of trying the civil 
right, seizing the franchise, or ousting the wrongful possessor. 1 
And such, without any special legislation to that effect, has always 
been its character in many of the states of the union. 2 In some of 
the states it has been treated as criminal, in form, and matters of 
jurisdiction and pleading have been regulated accordingly. Such is 
the rule in New York, Wisconsin, New Jersey, Arkansas, and Illi- 
nois ; but in all these states it is used as a civil remedy only. 3 
The effect, therefore, of state legislation, abolishing common law 
proceeding by information in the nature of quo warranto, and 
authorizing actions to be brought in cases to which that remedy 
was applicable, is to relieve the old civil remedy of the burden of 
the criminal form of proceeding, with which it had become encum- 
bered, and to restore it to its original position, as a civil action, 
for the enforcement of a civil right. The right and the remedy 
are thus brought into harmony ; and parties are not driven to the 
necessity of using the form of a criminal action to determine a 
civil right. 4 An information in the nature of a quo warranto is 
not a criminal charge, in the" sense of a constitutional provision 
that no citizen shall be required to answer any criminal charge, 
except on presentment, indictment, or impeachment. 5 

§ 856. In the absence of statutory provisions for contesting an 
election, an information in the nature of a quo warranto is the 

2 3 Bl. Com. 263 ; Rex v. Francis, 2 T. 4 Ames v. Kansas, 111 U. S. 449 ; Fos- 

R. 484; Bac. Ab. Information,!); 2 ter v. Kansas, 112 id. 201. 

Kyd. Corp. 439. See also Lindsey v. Attorney-General, 

2 Commonwealth v. Brown, 1 S. & R. 33 Miss. 508; Attorney-General v. Bars- 
385 ; People v. Richardson, 4 Cow. 102, tow, 4 Wis. 567 ; State «. Knpferle, 44 
note ; State v. Hardie, 1 Ired. Law, 42 ; Mo. 154 ; State v. Stewart, 32 id. 379 ; 
Bank v. State, 1 Blackf. 267 ; State v. State v. Lawrence, 38 id. 535 ; Corn- 
Lingo, 26 Mo. 496. monwealth v. Commissioners, 1 S. &. R. 

3 Attorney- General v. Ins. Co. 2 Johns. 382 ; Commonwealth v. Birchett, 2 Va. 
Ch. 370 ; Peoples. Jones, 18 Wend. 601 ; Cas. 51 ; Commonwealth v. McCloskey, 
State v. Railway, 34 Wis. 197; State v. 2Rawle, 381; Commonwealth v. Murray, 
Ashby, 1 Ark. 279; State v. Roe, 2 11 S. & R. 73. 

Dutch. 215. 5 State v. Hardie, 1 Ired. 42; State 

Bank v. State, 1 Blackf. 267. 



712 



proper remedy. 1 Without statutory authority, the information 
will only be allowed in cases in which the writ would have been 
granted at common law. 2 A proceeding, by information in the 
nature of a quo warranto, will lie for usurping any office, whether 
created by charter of the crown alone, or by the crown with the 
consent of parliament, provided it be a substantive office, and of 
a public nature, and not merely the function, or employment, of a 
deputy, or servant, held at the will and. pleasure of others. 3 It 
was held, by the court of queen's bench, that quo warranto would 
lie for the office of guardian of the poor, elected under the statute, 4 
because (1) the office was created by statute, and, inasmuch as 
the crown is an assenting party to every act of parliament, it so 
far emanates from the crown ; (2) it was an office of a public 
nature ; and (3) the incumbent was not removable at pleasure, 
but held for a definite term. 5 Quo warranto will lie for " an office 
of great trust and prominence, within the borough, touching the 
election and return of burgesses to serve in parliament." 6 It lies 
for the office of recorder - 1 for the office of a member of a board 
of health ; 8 for the office of constable; 9 for the office of treasurer 
of the county of Dublin j 1 ° for the office of street commissioner j 1 1 
for the office of bailiff of a court leet, 12 of justice of the peace, 13 
and of paving commissioners. 14 

§ 857. In Massachusetts an information in the nature of a quo 
warranto, by the attorney-general, in the name and on behalf of the 
commonwealth, is the proper process to oust a person, who holds 
de facto, and not de jure, a public office, which is vacated only by 
the death, resignation, or .removal of the incumbent. 15 When a 
person is in office, by color of right, the remedy for the admission 
of another, having a lawful claim, is not by mandamus, but by 
information in the nature of a quo warranto. x 6 In Alabama the 



1 Gass v. State, 34 Ind. 425 ; People v. 
Mattisou, 17 111. 167; People v. Scan- 
nell, 7 Cal. 432; People 9. Stevens, 5 
Hill, 616. 

2 Lindsey 9. Attorney-General, 33 Miss. 
509. 

3 Darley v. Reginam, 12 CI. & Fin. 520 ; 
Regina 9. Guardians, 17 A. & E. 149. 

4 4&5 W. 4, c. 76, s. 38. 
Regina 9. Hampton, 6 B. & S. 923. 
6 Rex 9. McKay, 3 Dowl. & Ryl. M. C. 
263. 



7 Rex v. Colchester, 2 T. R. 259. 

8 Regina e. Backhouse, 13 W. R. 846. 

9 Regina 9. Booth, 12 Q. B. 884. 

10 Darley 9. Reginam, 12 CI. & Fin. 520. 
1J King 9. Beedle, 3 A. & E. 467. 

12 Rex 9. Bingham, 2 East, 309. 

13 Rex 9. Blank, 2 Chit. 368. 

14 Rex 9. Bad cock, 6 East, 359. 

15 Commonwealth 9. Allen, 128 Mass. 
308. 

16 People 9. State, 7 Ga. 473 ; People 
v. New York, 3 Johns. Cas. 79 ; State 9. 



713 

remedy by information is available only in case of original ineligi- 
bility or of an illegal election. 1 On an application, for a man- 
damus, to the mayor .of a town, to issue his warrant for a new 
election, to fill the place of a member of the council, whose seat, 
it was alleged, had become vacant, for the reason that he had ap- 
plied for relief, as an insolvent debtor, it was held that the vacancy 
must first be established, by an information in the nature of a quo 
warranto, and that mandamus was not the proper remedy. 2 Under 
a statute providing that the election of certain officers " shall be 
holden on the first Monday, in the month of April next," 3 with 
no provision for adjournment of the election, mandamus will not 
lie to compel the return of candidates who were in a majority, at 
the close of the first day, but were in a minority, at the close of 
an adjourned election, on the second day. An information, in the 
nature of a quo warranto, is the only remedy. 4 An information 
in the nature of a quo warranto, filed by the attorney-general, in 
the name of the state, lies to inquire into the title by which a 
major-general, in the Rhode Island militia, holds his office. 5 

§ 858. When the statute provides that " if any town shall neglect, 
at its annual town meeting, to choose its proper town officers, or 
either of them, it shall be lawful for any three justices of the 
peace of the said town, by warrant under their hands and seals," 6 
to appoint a supervisor, the appointment, by the justices, is a 
judicial act, and cannot be questioned on mandamus ; but on an 
information in the nature of a quo warranto, to determine the title 
of their appointee to the office, it is competent to show that a vote, 
cast for the relator, was illegally rejected by the canvassers ; that 
the tie, thereupon declared between the relator and another can- 
didate, on which, as a failure to elect, the justices based their right 
to appoint, did not, in fact, exist ; and that the relator was legally 
elected. 7 When a councillor's name has been expunged from the 
burgess-roll, a quo warranto is the proper proceeding to try his 
title to the oifice, and not a mandamus to the mayor to hold a 
fresh election. 8 It is not a valid objection to a quo warranto that 

Deliessiline, 1 McC. 52 ; State v. Dunn, 3 Stat. U. C. 2 W. 4, c. 17, s. 4. 

1 Minor (Ala.) 46; King v. Mayor, 2 T. 4 Brockville case, 3 U. C. K. B. 173. 

R. 259 ; 4 Bac. Ab. 506; Rex v. Mayor, 5 State v. Brown, 5 B. I. 1. 

7 A. & E. 215. 6 Rev. Stat. N. Y. 1846, p. 398, s. 50 (31 ). 

1 State v. Gardner, 43 Ala. 234. 7 People v. Seaman, 5 Denio, 409. 

2 Regina v. Mayor, 25 U. C. Q. B. 293. 8 Regina v. Ricketts, 3 N. & P. 151. 



714 

it is a friendly proceeding instituted to enable a defendant to 
disclaim. It may be the only method by which a party in office 
can disclaim. His resignation may not be accepted, and he cannot 
disclaim in vacuo. 1 Where a municipal charter requires an elec- 
tion to be held by the mayor, jurats, and commonalty, the body 
may make a by-law, vesting the power of election in any select 
number ; but when the charter directs the election to be held by 
a majority of all the inhabitants, and it is held by a select number, 
agreeably to long usage, without any by-law authorizing that mode 
of election, an information in the nature of a quo warranto will be 
granted. 3 

§ 859. The court of king's bench held, in 1830, that an infor- 
mation, in the nature of a quo warranto, did not lie for the office 
of trustees, elected by ballot, pursuant to act of parliament, with 
power to appoint salaried watchmen to contract for the supply of 
the poor, to maintain the highways and prevent encroachments 
thereon, and to superintend the lighting, paving, watching, and 
cleaning of the streets, and other powers. The court did not 
set forth the grounds of their opinion that the proceeding was 
inapplicable to these offices. 3 In a case, determined by the court 
of king's bench, in 1835, it was held that an information in the 
nature of a quo warranto did not lie for the office of governor 
and director, elected annually by rated inhabitants, under a 
local act for the government of the poor, and the mainten- 
ance of the nightly watch. But the court did not, in this case, 
state the grounds of their conclusion that the proceeding was 
inadmissible. 4 A quo warranto will not lie for the office of master 
of a hospital and free grammar school, established by royal char- 
ter ; 5 nor for the office of guardian of the poor for a union, 
under 4 & 5 "W. 4, c. 76 ; 6 nor against overseers ; 7 nor for the 
office of church-warden. 8 Nor will a quo warranto information be 
granted for the purpose of trying the title of an officer to an office 
from which he has been removed. 9 On an application for an in- 
formation against the clerk of a school board, based on averments 

1 Eex v. Marshall, 2 Chitty K. B. 371. r ' Aston Union case, 6 A. & E. 784. 

2 Kex v. Tomlyn, Lee, 316. 7 Eex v. Danberry, 1 Bott's P. L. 

3 King v. Hanley, 3 A. & E. 463, note. 324. 

4 Kex v. Ramsden, id. 456. 8 Eex c. Shepherd, 4 T. R. 381. 
s Regina v. Mousley, 8 Q. B. 946. 9 Harris' case, 6 A. & E. 475. 



715 

of an improper election, 1 the court refused a rule, on the ground 
that the office was held during the pleasure of the board, and it was 
in the power of the board to furnish a remedy without the aid of 
the court. 2 

§ 860. When the statute creates a special tribunal and prescribes 
special proceedings for the trial of contested election cases, and 
the tribunal, to which jurisdiction is given, is vested with full 
powers to adjudicate all questions involved in such cases, the courts 
will not take jurisdiction, by quo warranto, at common law, even 
in case of fraud on the part of the officers of election or candidates. 3 
The court of queen's bench, in Ireland, will not interfere, in a 
contested election case, by an information in the nature of a quo 
warranto, when there is in existence a proper tribunal by which 
the question can be decided. 4 Under an act of parliament, 
declaring that, " upon every election to be made of any coroner, or 
coroners, for any county, the sheriff of the county, where such 
election shall be made, shall hold a court for the same election, at 
some convenient place, within the district for which the election 
of coroner shall take place, on some day to be by him appointed," 5 
and that he shall, at a time prescribed, " cast up the number of 
votes, as they appear on the said several books, and shall openly 
declare the state of the poll, and shall make proclamation of the 
person chosen," 6 the sheriff, in holding a court for the election of 
coroner, and in making his return to the writ of election, exercises 
judicial functions, and, therefore, quo warranto does not lie to 
inquire into the validity of votes given at the election, notwith- 
standing the fact that the law so limits the duration of the elec- 
tion that the legality of disputed votes cannot be determined by 
the sheriff. 7 Where the common council of a city is made the final 
judge of the election of its members, the supreme court of the state 
cannot, on mandamus, quo warranto, or certiorari, review its 
determination upon the facts. 8 An information will not lie where 
a remedy may be had by bill in equity. 9 

1 33 & 34 Vict. c. 75, s. 35. 4 Eegina v. Austin, 3 Ir. Law Eep. N. 

2 Bradley v. Sylvester, 25 L. T. N. S. s. 445. 

459. 5 7 and 8 Vict. c. 92, s. 10. 

3 Commonwealth v. Leech, 44 Penn. 6 Id. s. 15. 

St. 332; Commonwealth v. Baxter, 35 7 Kegina v. Diplock, 10 B. & S. 613. 

id. 263 ; State v. Marlow, 15 Ohio St. 114; 8 Alter D. Simpson, 46 Mich. 138. 

State v. Taylor, id. 137 ; State *. Wad- 9 Dart v. Henston, 22 Ga. 506 ; People 

kins, 1 Eich. 42. v. Whitcomb, 55 111. 172. 



716 

§ 861. In Indiana the adoption of a statutory proceeding, for 
the trial of cases of contested elections, will not exclude the remedy 
by information in the nature of a quo warranto, in the absence of 
express, or implied, provision to that effect ; and a defendant in 
such an information is not restricted to the question of the effect 
of the relator's certificate, but may aver and prove his own title 
to the office. 1 Nor will the adoption of a special statutory pro- 
ceeding, for the trial of cases of contested elections, in the absence 
of express provision to that effect, abrogate the right to a trial, 
upon an information in the nature of a quo warranto, secured by 
an unrepealed statute of the same date with that which establishes 
the statutory proceeding. 2 If an election, for the incorporation 
of a city, be void, because not ordered according to law, the fact 
that provision is made, by statute, for contesting the election, will 
not exclude the remedy by information in the nature of quo 
warranto against municipal officers holding under subsequent elec- 
tions. 3 At an election for sheriff, in the state of Tennessee, C. 
received a majority of the votes cast. The commissioner made 
his return accordingly ; and he prepared a certificate of election 
for C, but failed to deliver it. Afterwards he filed an amended 
return, rejecting the vote of a city ward, for irregularities, the 
amended return showing that W., and not C, was elected. A cer- 
tificate of election was given to W., who was thereupon inducted 
into office, by the county court. It was held that a statutory pro- 
vision that " the validity of any election, which may be contested 
under this code, cannot be tried, under the provisions of this 
chapter," 4 was to be construed as if written, "the validity of an 
election, which may be contested under this code, by the party 
who seeks this remedy, cannot be tried under the provisions of 
this chapter," and that, inasmuch as C. insisted upon the validity 
of the election, the remedy by information in the nature of a quo 
warranto, prescribed by the code, was proper; that, inasmuch as 
it was conceded that C. had received a majority of the votes actually 
returned to the commissioner, by the judges of election, no proof 

1 State v. Shay, 101 Ind. 36 ; State v. 2 State v. Gallagher, 81 Ind. 558. 

Gallagher, 81 id. 558; State v. Adams, 3 Stephens^. People, 89 111. 338. 

65 id. 393; Keynolds v. State, 61 id. 4 Code Term. s. 3423. 

392 ; Barkwell v. State, 4 id. 179 ; Hud- 
dleston v. Pearson, 6 id. 337. 



717 

could be received, in this proceeding, to attack his prima facie 
title. 1 

§ 862. Under a statute providing that an information may be 
filed against any person when such " person shall usurp, intrude 
into, or unlawfully hold, or exercise, any public office," 3 it was 
held that the circuit court had original jurisdiction of a suit by 
information, although the relator had an adequate legal remedy 
under the act regulating contested elections. 3 When the charter 
of a municipal corporation provided that the city council should 
be " the judge of the election and qualifications. of its own mem- 
bers," but no ordinance had been adopted defining the method of 
contesting the election in such case, it was held that a claimant 
was not precluded from the remedy by information provided by 
the general statute. 4 A custom shown for the lord mayor and 
aldermen of London to adjudicate cases of municipal elections 
does not oust the jurisdiction of the court of king's bench, on 
mandamus, or quo warranto, in such cases. 5 Where it appeared 
that a disqualified person had been elected town councillor, in 
Ireland, at an election held on the 25th of November, 1871, the 
court of queen's bench in Ireland granted an information in the 
nature of a quo warranto, notwithstanding the act of parliament, 6 
which took effect September, 1871, considering it unreasonable to 
confine the relator to the remedy provided by an act so recently 
passed. 7 

§ 863. The court will not grant a quo warranto information 
against an officer of a corporation established by royal charter, 
pursuant to statute, 8 if it appear that the object, in prosecuting 
such information, is to dispute the legality of the charter. 9 The 
title of the electors, corporators de \ facto, cannot be put in issue 
in a quo warranto information against the elected. 1 ° When the 
right of election is in freemen in their corporate description, the 
question whether they were duly chosen freemen is not to be tried 
at an election of a third person ; but they must be properly ousted. * J 

1 State v. Wright, 10 Heisk, 237. 7 Kegina v. Franklin, 6 Ir. C. L. 239. 

2 2 Stat. Ind. Eev. 1876, 298. 8 7 W. 4, & 1 Vict. c. 78. 

3 State v. Adams, 65 Ind. 393 ; State 9 Kegina v. Taylor, 11 A. & E. 949. 

v. Gallagher, 81 id. 558. 10 Rexc. Hughes, 3 Dowl. &Byl. M. C. 

4 State v. Funck, 17 Iowa, 365. 250. 

5 Rex v. Mayor, 9 B. & C. 1. " Symmers v. Kegem, 2 Cowp. 498. 

6 34 & 35 Vict. c. 109, s. 20. 



718 

Quo warranto will not lie against a county treasurer, elected 
by the justices in quarter sessions, on the ground that one of the 
justices, who voted at the election, had not, at the time of the 
election, duly qualified himself by taking the oath prescribed by 
law; for the acts of the justice are not void, although he may 
be liable to penalties for violating the law. 1 On an information 
in the nature of a quo warranto, against officers of a municipal 
corporation, Lord Mansfield, delivering the judgment of the court 
of king's bench, said that the line did not " seem to be fully and 
clearly drawn and fixed where the rights of the electors can be gone 
into, on the trial of the right of the elected." 2 The general rule, that 
the title of the electors is not to be assailed by attacking the title 
of the person elected by them, does not apply to the case where 
there is no method of prosecution, by which the title of the electors 
may be questioned, in the first instance. If the titles of electors 
cannot be impeached directly, they must, of necessity, be open to 
impeachment by an attack upon the validity of the election held 
by them, in a proceeding against the person elected. 3 An infor- 
mation in the nature of a quo warranto, against an officer elected 
by ballot, will not be granted, in England, on the ground that a 
large proportion of the voters were not qualified, if it be not shown 
for whom the votes of those persons were given. 4 An informa- 
tion will not lie to compel an officer elect to assume the duties of 
the office. 5 An information will not lie against an officer for 
performing official acts outside of his own jurisdiction. 6 

§ 864. The supreme court of the United States had jurisdiction 
of an information, in the nature of a quo warranto, to determine 
the title to the office of mayor of the city of Georgetown, in the 
District of Columbia, removed by writ of error from the circuit 
court, the term of the office being two years and the salary one 
thousand dollars, payable monthly, the appropriation therefor, 
when made, being for the whole year. The writ of error, sup- 
ported by the proper bond, operated as a supersedeas upon the 
judgment of ouster in the circuit court. The fact that the term 
of the office was about to expire, on the return day of the writ, did 

1 Rexi>. Justices, 1 Chitty K. B. 709. 5 Queen v. Hungerford, 11 Mod. Rep. 

a Rex v. Latham, 3 Burr, 1485. 142. 

3 Rex v. Mein, 3 Durn. &E. 596. 6 Regina «. Justices, 2 L. T. R. N. S. 

4 Rex v. Jefferson, 5 B. & Ad. 855. 372. 



719 

not affect the jurisdiction, or trie duty, of the supreme court, or 
authorize the issue of a mandamus to the circuit court to execute 
the judgment of ouster. 1 Under state constitutions conferring orig- 
inal jurisdiction of informations, upon both supreme and inferior 
courts, supreme courts may properly decline to exercise it. 2 Under 
a constitutional provision of the following form : " The supreme 
court shall have general supervision and control over all inferior 
courts of law and equity ; it shall have power to issue writs of 
error, supersedeas, certiorari, habeas corpus, mandamus, quo war- 
ranto, and other remedial writs, and to hear and determine the 
same," it has been held that the supreme court of a state has orig- 
inal jurisdiction of the writs of mandamus and quo warranto, in 
contested election cases. 3 

§ 865. The power conferred by the constitution upon the courts 
to issue writs of quo warranto, cannot be taken away by any 
legislative change in the form of the remedy ; but the courts may 
adopt new proceedings, authorized by law, and adapted to the 
attainment of the same end. 4 The constitution of Wisconsin 
confers upon the supreme court of that state original jurisdiction 
of the writ of quo warranto, which it may exercise by proceeding 
at common law, and this includes, by implication, jurisdiction of 
the information in the nature of a quo warranto. This court also 
has jurisdiction of the information in the nature of a quo warranto 
under the statute. 5 The courts have no power to control, or inter- 
fere with, the functions of the executive department of a state 
government ; but, under statutes like that cited in section 878, 
they have jurisdiction to prevent citizens from usurping the offices 
and franchises of the state ; and the exercise of such jurisdiction 
involves no attempt at such control or interference. 6 Each depart- 
ment of the government has the right to exercise all the powers 
conferred upon it by the constitution, although, in particular 

1 United States v. Addison, 22 How. 5 State v. West Wisconsin R.R. Co. 34 
174. Wis. 197 ; Attorney-General v. Barstow, 

2 State v. Stewart, 32 Mo. 379 ; State 4 id. 567 ; Attorney-General v. Blos- 
v. Burskirk, 43 id. 111. som, 1 id. 317; State v. Messmore, 14 

3 Fitch v. McDiarmid, 26 Ark. 482; id. 115. See also State v. Gleason, 12 
Price v. Page, 25 id. 527 ; Howard v. Fla. 190 ; State v. Merry, 3 Mo. 278 ; 
McDiarmid, 26 id. 100; State v. Mc- State v. Ins. Co. 8 id. 330; State v. 
Diarmid, id. 480. Stone, 25 id. 555. 

4 State v. Messmore, 14 Wis. 125 ; State 6 Attorney-General v. Barstow, 4 Wis. 
v. Foote, 11 id. 14. 567. 



720 

cases, powers ordinarily denominated legislative, executive, or 
judicial, respectively, are vested in departments which do not ordi- 
narily exercise, and do not correspond, in name, with such powers ; 
and, although the exercise of such powers involves the adjudica- 
tion, by one department, of the election and qualifications of an 
officer of another department. x In the sense of the constitution of 
Wisconsin the office of governor is a civil office, and, under a statute 
like that cited in section 878, an unlawful intrusion into, or usur- 
pation of, such office may be tried in the supreme court, upon 
information in the nature of a quo warranto, and the intruder, or 
usurper, ousted and punished. 2 

§ 866. The constitution of the state of Alabama contained the 
following provision : " The supreme court, except in cases other- 
wise directed by this constitution, shall have appellate jurisdiction 
only, which shall be co-extensive with the state, under such re- 
strictions and regulations, not repugnant to this constitution, as 
may from time to time be prescribed by law : Provided, That the 
supreme court shall have power to issue writs of injunction, man- 
damus, quo warranto, habeas corpus, and such other remedial and 
original writs as may be necessary to give it a general superintend- 
ence and control of inferior jurisdictions." 3 Under this provision it 
was held that the supreme court of that state could not entertain 
an information in the nature of a quo warranto, to try the right 
of an individual to the office of judge of the county court, unless 
an application had been made to and refused by the circuit court. 4 
The legislature of the state having established a new judicial cir- 
cuit, 5 and provided that the judge of the new circuit court should 
not be required to alternate with the judges of the other circuits, 
but might do so when he thought it necessary, 6 it was held, under 
the constitutional provision already cited, that the supreme court 
could entertain an information in the nature of a quo warranto, 
to try the eligibility of an individual, who had been elected to the 
office of judge of that circuit ; for otherwise, if the circuit judge 
should decline to alternate with others, there could be no adjudi- 
cation of the question of his eligibility. 

1 Attorney-General v. Barstow, 4 Wis. 4 State v. Williams, 1 Ala. N. S. 342 ; 
567. Simonton's case, 9 Porter, 383. 

2 lb. 5 Stat. Ala. Jan. 31, 1840. 
» Const Ala. art. 5, s. 2. 6 Id. Feb. 5, 1840. 



721 

§ 867. Where the charter of a municipal corporation pro- 
vides that the votes, cast at a popular election for mayor 
and aldermen, shall be returned, by the managers of the 
election, to the acting mayor, and be, by him, laid before 
the city council, to be examined and counted ; that the " city 
council shall be the judges of all elections, and shall have power 
to determine all matters in relation thereto, and ascertain the 
legality of votes, and, in the count, shall reject all illegal votes, 
and count only such as are legal ; and, to this end, they are em- 
powered to take testimony, examine witnesses, to send for persons 
and papers ;" but does not declare that their decision shall be final, 
nor make any provision for contesting it, their determination 
secures to the person, in whose favor it is made, a prima facie 
right to the office, which may be subsequently contested, on an 
information in the nature of a quo warranto, under the general 
law. In such cases the jurisdiction of the courts remains, unless 
it appears, with unequivocal certainty, that the legislature intended 
to take it away. Statutory provisions, like the foregoing, will 
ordinarily be construed to establish a tribunal of primary, but not 
final, or exclusive jurisdiction. 1 

§ 868. Courts of common law, of general jurisdiction, have an 
inherent power, subject to statutory regulation, to inquire into the 
regularity and validity of the title to municipal offices, whether 
acquired by election, or otherwise, on quo warranto, or, on 
an information in the nature of a quo warranto. Of this 
jurisdiction they are not deprived by legislation prescribing special 
statutory remedies, whereby the same redress may be obtained, 
unless it clearly appears to have been the legislative intent to take 
it away. 2 When the special statutory remedy by contest is inad- 
equate, or is so loosely prescribed as to be incapable of pursuit, 
or is unconstitutional and void, the remedy by quo warranto, or 
by information in the nature of quo warranto, remains. 3 The 
supreme court of California has no original jurisdiction of an action 
to try the title to an office. 4 

§ 869. Without constitutional or statutory authority, an infor- 
mation can only be filed in the name of the state. 5 The franchises 

1 Echols v. State, 56 Ala. 131. 5 United States v. Lockwood, 1 "Wis. 

2 Moulton v. Keid, 54 Ala. 320. (Pinney) 359 ; State v. Gleason, 12 Fla. 
»Ib. 190; Lowthers case, Ld, Kaym. 1409. 

4 People v. Harvey, 62 Cal. 508. 

46 



722 

and privileges of the office of elector of president and vice-presi- 
dent are conferred by the United States, through the federal con- 
stitution and laws. An action in the nature of a quo warranto 
does not lie in the name of the state, to determine the title to this 
office ; and the objection may be made by the defendant, under a 
plea to the jurisdiction of the state court, in which the action is 
brought. 1 Such an action is not removable, from a state court to 
a federal court, on the ground that the " matters in dispute therein 
arise under the constitution and laws of the United States." 3 An 
information cannot be filed in the name of a territory, against a 
territorial judge appointed by the president and confirmed by the 
senate. 3 An act, conferring upon any elector the right to contest 
the election of any person who has been declared duly elected to 
a public office, does not deprive the people, in their sovereign 
capacity, on complaint made, to inquire into the authority by which 
any person claims to exercise the functions of a public office. 4 
When an application for leave to file an information in the nature 
of a quo warranto has been granted, and the information has been 
filed by the solicitor-general, the state is a party to the proceed- 
ing, and, on exception to the order dismissing the case, the state 
is a necessary party to the bill of exceptions. 5 The recital, in an 
information, of a request, by the legislature, for the institution of 
the proceeding, will not destroy the presumption that the attorney- 
general prosecutes the information in his official capacity. 6 

§ 870. In Massachusetts, in the absence of statutory regulation, 
^the attorney-general has the right, in the name and on behalf 
of the commonwealth, at his own discretion, to file an information 
in the nature of a quo warranto against one usurping a public 
office ; the court has no authority to grant or to withhold leave to 
file it ; and the mention of relators, in the information, is mere 
surplusage, which does not affect the validity of the information, 
or the form of the judgment to be rendered thereon. 7 

§ 871. In Mississippi an unsuccessful candidate cannot maintain 
a proceeding by quo warranto, against an opponent who usurps 
the office, although the state, by the proper officer, may institute 

1 State v. Bowen, 8 S. C. 400. 5 Churchill v. Walker, 68 Ga. 681. 

2 Id. 382. 6 Commonwealth v. Fowler, 10 Mass. 

3 Territory v, Lockwood, 3 Wall. 236. 290. 

4 People v. Holden, 28 Cal. 123. * Commonwealth v. Allen, 128 id. 308. 



723 

a proceeding to oust him. 1 In Arkansas the original writ, which 
is still retained in that state, is not granted on the relation of a 
private citizen. 2 In Ohio if the prosecuting attorney refuse to 
proceed with- the application the court may substitute another 
prosecutor. 3 Under statutes abolishing the original writ of quo 
warranto, as well as proceedings by information in the nature of 
quo warranto, and providing that " an action may be brought, by 
the attorney-general, in the name of the people of the state, upon 
his own information, or upon the complaint of any private party, 
against the parties offending in the following cases : 1. When any 
person shall usurp, intrude into, or unlawfully hold, or exercise, 
any public office, civil or military, or any franchise within this 
state, or any office in a corporation created by the authority of 
this state," 4 a civil action, in the nature of a writ of quo warranto, 
is the appropriate remedy to test the validity of an election to a 
public office. Such action must be brought in the name of the 
people of the state, by the attorney-general, on the relation of the 
party aggrieved. It cannot be brought by an individual, in his 
own name. 5 Nor can it be submitted without action. 6 

§ 872. At common law informations in the nature of quo war- 
ranto could only be filed by the crown, and through the medium 
of the attorney -general. The disputes which gave rise to these 
informations being, in general, such as only affect individuals, 17 it 
was enacted by 9 Ann. c. 20, s. 4, that the proper officer of the 
court might, with the leave of the court, exhibit quo warranto in- 
formations, at the relation of any person desiring to prosecute the 
same, and that he should be named in the information as the 
relator. 8 " No rule shall be granted for filing any information in 
the nature of a quo warranto, unless, at the time of moving, an 
affidavit be produced, by which some person, or persons, shall 
depose, upon oath, that such motion is made at his, or their, in- 
stance, as relator or relators ; and such person, or persons, shall 
be deemed to be the relator, or relators, in case such rule be made 
absolute, and shall be named as such relator, or relators, in such 

1 Harrison v. Greaves, 59 Miss. 453. 6 Davis v. Moss, 81 N. C. 303. 

2 Eamsey v. Cashart, 27 Ark. 12. 7 Eex v. Francis, 2 T. E. 484. 

s State v. Moffat, 5 Ohio, 358. * Eex v. Payne, 2 Chitty K. B. 369, 

4 N. C. C. C. P. ss. 362, 366. note. 



Saunders v. Gatling, 81 N. 0. 298. 



724 

information, in case the same shall be filed, unless the court shall 
otherwise order." 1 Under a statute providing that an information 
in the nature of a quo warranto may be filed by any person, " on 
his own relation, whenever he claims an interest in the office," it 
was held, by the supreme court of the state of Indiana, that an 
information could be lawfully filed by a person claiming to hold 
the office, by an appointment of the county commissioners, made 
on the ground that the incumbent, by accepting the position of 
assistant door-keeper of the house of representatives of the United 
States, had lost his residence and forfeited his office. 2 The 
attorney-general, having filed an information, on the relation of a 
person claiming an office, will not, without the concurrence of such 
person, be permitted to dismiss the proceeding, to the prejudice 
of the person whom he has made relator. He may dismiss, or 
discontinue, the information, so far as the rights or interests of 
the people may be involved, but, in such case, the relator will be 
allowed to prosecute his own claims, or rights, in a suit so insti- 
tuted. 3 In a suit, commenced by information in the nature of a 
quo warranto, filed by the attorney -general, upon the relation of a 
citizen claiming the office, or franchise, in controversy, the court 
will protect the interests of all parties, the people, the relator, and 
the respondent. 4 

§ 873. Every citizen of a town has such an interest in its munic- 
ipal offices as will support an information in the nature of a quo 
warranto, to try the title of incumbents. 5 Any burgess is a com- 
petent relator against a person exercising the office of town clerk, 
although the right of electing to that office is in a select body. 6 
A private citizen is a competent relator on an information against 
a tax collector, 7 or member of the common council. 8 A member 
of a board of public officers is qualified, in point of interest, to 
be a relator, in an information against another member of the 
board. 9 

§ 874. In England an inhabitant of a borough may be a relator, 

1 Keg. Gen. Q. B. 8 Nov. 1839, 3 Vict.; 6 Rex v. Daviess, 1 M. & R. 538. 

11 A. & E. 2. 7 Commonwealth v. Commissioners, 1 

2 Yonkey v. State, 27 Ind. 236. S. & R. 380. 

3 Attorney-General v. Barstow, 4 Wis. 8 Commonwealth v. Meeser, 44 Penn. 
567. St. 341. 

4 lb. 9 Dickson v. People, 17 111. 197. 

5 Churchill ?. Walker, 68 Ga. 681. 



725 

on an application for an information in the nature of a quo war- 
ranto, although he be not a burgess. 1 A person who consents 
that a vote shall be received, upon the voter's affidavit that he is 
a resident of the precinct, is not estopped from applying, as relator, 
for the institution of an action in the nature of a quo warranto, 
when it appears that the defendant had previously voted at the 
same election, at a different precinct, where his wife and family 
resided. 2 It is no objection to an application for an information 
in the nature of a quo warranto, against a mayor, for not having 
taken the sacrament within the proper time before his election, 
that the relators concurred in his election, because that defect in 
his title to office is a latent one, arising from the omission of an 
act positively required by the legislature ; 3 and for such an omis- 
sion the court will grant an information, at the prayer of a stranger 
to the corporation, because it concerns the interest of the whole 
kingdom. 4 S., the successful candidate at an election for treas- 
urer of the county of the city of Dublin, having been, on motion 
at the suit of D., declared, by the court of queen's bench (in Ire- 
land), unduly elected on account of the non-summons of some of 
the electors, and having, on the discussion of the motion, insisted 
that a valid election had been made, and that he had been duly 
elected, it was held, on a motion for an information in the nature 
of a quo warranto, to try the validity of the election, in which K., 
one of the sureties for S., at the election, was the nominal, while 
S. was the real, relator, that K. was a competent relator ; that he 
was not estopped from insisting that the election was void : that 
S. was not estopped from asking the interference of the court in 
his favor, by the circumstance that he had procured himself to be 
elected, pending a mandamus at the suit of D., nor by the fact 
that the corporation funds had been misapplied, in defraying the 
expenses of S. incurred in maintaining his case against D. 5 To 
an application for a quo warranto information, against a defend- 
ant, for exercising the office of alderman, by relators who had 
opposed his election, it is not a valid objection that they subse- 
quently acquiesced in his election to the office of senior bailiff (to 
which the office of alderman was a necessary qualification), or that 

1 Kegina v. Quayle, 11 A. & E. 508. 4 Kex v. Brown, 3 Durn. & E. 574, n. 

2 Kegina v. Caesar, 11 U. C. K. B. 461. 5 Kegina v. Darby, 2 Jebb & S. 239. 

3 Rex v. Smith, 3 Durn. & E. 573. 



726 

they afterwards attended corporate meetings, which he attended 
or presided over, in his official capacity, and concurred in the 
proceedings, such application being made within four years after 
the defendant's election to the office of alderman, according to 
law. 1 The fact that the voters permit a moderator, unlawfully 
elected, to preside during the subsequent proceedings of a town 
meeting, does not involve such an acquiescence in the legality of 
his election as to exclude a quo warranto to test its validity. It 
is not the voters alone that are interested in such a proceeding. 3 
§ 875. Rules nisi for quo warranto informations were obtained, 
against several parties, for exercising the office of alderman, on the 
ground that they had been unduly elected. Pending such rules 
a burgess, in whose place one of the parties had been elected, 
moved the court that, if the rules were made absolute, the manage- 
ment of the prosecutions might be transferred to himself, alleging 
that he had been improperly displaced, and had contemplated 
moving for quo warranto informations against the parties elected ; 
that the informations then in question had been moved for collu- 
sively, by persons of a political party in the borough adverse to his 
own, and the same as that of the persons elected ; that the relator 
was in low circumstances, and in the employment of the attorney 
prosecuting the rules ; and that the attorney had employed the 
same agents in London to instruct counsel for and against the 
rules. In answer it was stated that the motions were made dona 
fide, and without collusion, for the purpose of trying a point of law ; 
that the course complained of had been taken for the purpose of 
having the question discussed adversely, but at the least possible 
expense ; that the relator was interested in the affairs of the 
borough, and had obtained the rules for the sole purpose of 
having the question tried, and not on the request of the attorney, 
and was liable to him for the costs. The court, on making the 
rules absolute for quo warranto informations, directed that the 
management of the prosecutions should be transferred as prayed ; 
although they were of opinion that the facts did not show collusion, 
or a design, on the part of the original prosecutors, to obtain any 
undue advantage. 3 After a rule for an information in the nature 
of a quo warranto has been made absolute, the court will, on 

'Bex v. Clarke, 1 East, 36. 3 Regina v. Alderson, 11 A. & E. 3. 

2 State v. Harris, 52 Verm. 216. 



727 

motion, change the relators, if private business shall necessitate 
the absence of the original relator from England, so that he shall 
be unable to enter into the recognizance required by law. x 

§ 876. On an application for leave to file an information in the 
nature of a quo warranto, the court will judge, from all the cir- 
cumstances, who are the real prosecutors. 3 Where, upon the ap- 
plication for an information in the nature of a quo warranto, the 
relator comes before the court as a freeman, and it appears that 
his freedom was conferred by the same select body which has 
elected the defendant, to the office, the title to which the relator 
seeks to impeach, by the information, the relator cannot be heard, 
as his own title to his freedom stands upon the same foundation 
as the defendant's title to the office. 3 It is a valid objection to the 
claim of a member of a municipal corporation to apply, as relator, for 
an information in the nature of a quo warranto, for exercising the 
office of mayor, that the relator was present and concurred, at the 
time of the objectionable election, even though he was then igno- 
rant of the objection, which rested on provisions of the charter ; 
for a corporator must be taken to be cognizant of the contents of 
his own charter, and of the law arising therefrom. 4 A town coun- 
cillor is disqualified to be a relator, in an application for an infor- 
mation in the nature of a quo warranto, to question the election 
of another town councillor, he having been present at the election, 
and cognizant of the objection before the election, and having 
afterwards administered to him, without protest, the declaration 
of office prescribed by law. 5 When votes of electors, not properly 
entered upon the burgess-roll, are received and recorded, at a 
municipal election, with the assent of a burgess, who is canvass- 
ing for the office, such burgess, by his assent to the reception of 
the votes, disqualifies himself for objecting to their legality on an 
application for an information in the nature of a quo warranto. 6 
An information to oust an incumbent of an office will not be al- 
lowed, on motion of a relator who has induced him to exercise it. 7 
When the relator, on an application for an information, against 

^egina v. Quayle, 9 Dowl. 548. 5 Regina v. Greene, 2 Gale & Dav. 24 ; 

2 Rex v. Cudlip, 6 Durn. & E. 503. 5 Q. B. 460. 

3 Rex v. Bracken, A. & K 113 ; Rex v'. 6 Regina v. McMahon, 1 Ir. Law Rep. 
Cudlip, 6 Durn. & E. 503 ; Rex v. Cow- N. S. 218. 

ell, 3 Dowl. & Ryl. M. C. 242. 7 Queen <o. Greene, 2 Ad. & E. N. S. 

4 Rex v. Trevenen, 2 B. & Aid. 339. 460. 



728 

the defendant, for exercising the office of alderman, without hav- 
ing been duly elected, is the legal adviser of the defendant, and 
has advised him that he was duly elected, the court will refuse the 
application. 1 The court refused to grant an information in the 
nature of a quo warranto, because the applicant therefor had 
agreed not to enforce a by-law, upon which he grounded his at- 
tempt to impeach the defendant's title. 2 

§ 877. On application for leave to file an information in the 
nature of a quo warranto, to contest an election, the judge may 
inquire into the relations which the applicants sustain to the elec- 
tion, and, if it appear that they have been guilty of such conduct 
as ought to preclude them from making the application, it will be 
denied. When the law required an election of councilmen to be 
held on the third of January, but, under a mistake of the law, 
the council caused the election to be held on the seventh of 
January, and the relators, being four of the councilmen and one 
other person, were candidates, and were defeated, nearly all 'the 
voters of the town taking part in the election, and two days after- 
wards the council ordered another election to be held, upon five 
days' notice, on the fourteenth of the month, at which only seven 
votes were cast, and the relators were elected, it was held that the' 
relators were estopped, by their conduct, and their application for 
leave to file an information in the nature of a quo warranto was 
denied. 3 A defeated candidate cannot, as relator, base an infor- 
mation on irregularities in which he himself acquiesced. 4 When 
a corporator has attended and voted at a meeting, for the election 
of officers of the borough, he will not be permitted to become a 
relator in quo warranto, and impeach the titles of the persons then 
elected, on account of an objection to the title of the presiding 
officer, unless he shows that, at the time of the election, he was 
ignorant of the objection. 5 A relator cannot base an information 
upon irregularities, in a municipal election, to which, by acquies- 
cence, or laches, he has himself contributed. 6 In England it is 
a valid objection to the right of a relator to apply for a quo war- 
ranto information, for usurping the office of burgess, that he was 

J Rex v. Payne, 2 Chitty K. B. 369. 5 Rex v. Slythe, 6 B. & C. 240. 

2 Rex v. Mortlock, 3 T. R. 300. "King v. Mortlock, 3 T. R. 301 ; State 

3 Dorsey v. Ansley, 72 Ga. 460. v. Lehre, 7 Rich. 234 ; King v. Symmons, 
4 Regina v. Lockhouse, 14 L. T. R. N. 4 T. R. 224; King v. Morris, 3 East, 

S. 359. 213. 



729 

formerly present at, and concurred in, the election of another bur- 
gess, when the same objection was taken, and concurred in over- 
ruling such objection, and electing the party. 1 On an information 
in the nature of a quo warranto, against particular members of a 
corporate body, the title of other corporators de facto cannot be 
tried. 2 

§ 878. The title to the office of governor of the state of Wisconsin 
was adjudicated by the supreme court of that state, under a statute 
framed as follows : " Chapter one hundred and twenty-six of the 
revised statutes is so amended that whenever any citizen of this 
state shall claim any public office, which is usurped, intruded into, 
or unlawfully held and exercised, by another, the person so claim- 
ing such office shall have the right to tile, in the supreme court, 
either in term time, or vacation, an information in the nature of 
a quo warranto, upon his own relation, and with, or without, the 
consent of the attorney-general, and such person shall have the 
right to prosecute said information to final judgment, in all other 
respects as provided in said chapter : Provided, He shall first have 
applied to the attorney-general to file the information, and the 
attorney-general shall have refused, or neglected, to file the same ; 
and in such case he shall be liable for the. costs, if he shall fail to 
establish his title to the office." An information in the nature of 
a quo warranto, against William A. Barstow, governor of Wis- 
consin, on the relation of Coles Bashford, was presented to the 
attorney-general, with the request that he would sign and file it, 
according to law. The attorney-general refused to sign, or file, 
this information, but, without the request, knowledge, or consent 
of Bashford, filed a different information in the nature of a quo 
warranto against Barstow, the governor, purporting to be on the 
relation of Bashford. Bashford thereupon moved that the infor- 
mation filed by the attorney-general be discontinued, and that he 
be permitted to file an information, on his own relation, and to 
prosecute the same himself, or by his own counsel. The court 
denied the motion, without expressing any opinion as to the 
course to be taken if the attorney-general should show bad faith 
towards the relator. 3 

§ 879. A quo warranto will not be issued without the consent 

1 Bex v. Parkyns, 1 B. & Ad. 690. 3 Attorney-General v. Barstow, 4 Wis. 

2 Symmers v. Kegem, Cowp. 498. 567. 



730 

of the attorney-general, upon the information of a private party 
having no personal interest in the question distinct from that of the 
public, to try the right of an incumbent of a public office to hold 
the same. 1 The refusal of the county commissioners to act upon 
the official bond of a sheriff elect will not entitle him, as relator, 
to an information against the incumbent of the office. 3 Parties 
claiming different offices cannot join as relators. 3 Under the 
English statute, 4 informations, against different persons, may be 
consolidated, if their rights be identical, 5 or their offence joint. 6 
A competent relator cannot be introduced by amendment.' 7 A 
statute providing that the writ of quo warranto " may be issued, 
upon the suggestion of any person, or persons, desiring to prose- 
cute the same," does not give the writ to a private relator, in a case 
of public right involving no individual grievance. The words, 
" any person, or persons, desiring to prosecute the same," mean 
any person who has an interest to be affected. A minority can- 
didate, therefore, is not entitled to the writ, in a case where the 
candidate receiving the highest number of votes is ineligible. He 
has no claim to the office, and has no interest in the case, beyond 
that of any other citizen. 8 An information will not lie against an 
agent or employe of the government who is not a public officer. 9 
§ 880. An information in the nature of a quo warranto will not 
be granted against a person who has not been in actual possession 
of the office. There must be a user, as well as a claim, in order 
to found such an application. The fact that the defendant tend- 
ered himself to be sworn in is not sufficient. 1 ° An information 
does not lie against a mere servant of a corporation, whose office 
does not affect any franchise, or other authority holden under the 
crown. x 1 But an information was granted against several persons, 
for exercising the office of commissioners for paving a town, under 
an act of parliament, with power to impose rates and taxes on the 
inhabitants. 1 2 An information in the nature of a quo warranto, 

1 Barnum ®. Gilman, 27 Minn. 466. 8 Commonwealth v. Cluley, 56 Penn. 

2 State v. Lewis, 10 Ohio St. 128. St. 270. 

3 People v. De Mill, 15 Mich. 164. 9 State v. Champlin, 2 Bailey, 220; 

4 9 Anne, c. 30. People e. Hills, 1 Lansing, 202. . 

6 Rex v. Foster, Burr, 573. a0 Rex v. Whitwell, 5 Durn. & E. 85. 

fi King v. Warlow, 2 M. & S. 75. See also Rex v. Ponsonby, Say, 245, 247. 
7 Regina v. Thirlwin, 9 L. T. R. N. S. " Rex <o. Bedford Level, 6 East, 356. 

731. 12 Rex a. Badcock, id. 359. 



731 

like the original writ of quo warranto, must be directed against 
natural persons. Its object is to determine the right of such per- 
sons to exercise official authority. An election, held for the loca- 
tion of a county seat, cannot be contested on an information in 
the nature of a quo warranto. 1 The court will grant a quo war- 
ranto information, at the instance of a private relator, against a 
member of a corporation, on grounds affecting his individual title, 
although it be suggested that the same objections apply to the 
title of every member, and that the application is, therefore, in 
effect, against the whole corporate body. 3 

§ 881. Under the statute 3 an application for an information in 
the nature of a quo warranto, calling on a person to show by 
what warrant he holds the office of mayor, alderman, councillor, 
or burgess, must be made within twelve months after his disquali- 
fication. It is not sufficient that it is made within twelve months 
after notice of the disqualification. 4 

§ 882. The court of queen's bench will, in its discretion, refuse 
a rule for an information, against the mayor of a borough, when 
the ground of objection to his title is that he was unduly elected 
alderman, his title to the office of mayor being founded on his title 
to that of alderman where the election occurred more than twelve 
months prior to the application for the rule, in the absence of 
special circumstances to induce the court to interfere. 5 Where the 

1 Leigh v. State, 69 Ala. 261; Peoples. poration may have been, or may be, 
County Commissioners, 6 Cal. 202. granted, shall be liable to be questioned, 

9 ^ t™_ -x i- a o. -n oi o by reason of a defect in the title of such 

2 Hex u.White, 5 A. & E. 613. pergon tQ ^ office of aldermailj or 

3 1 Vict. c. 78, s. 23. See also 6 & 7 councillor, to which he may have been 

Vict. c. 89. ss. 1, 5. previously elected, unless application 

4 Sheriff's case, 9 L. E. Q. B. 256. shall have been made to the court of 

queen's bench, calling upon such person 

" Every application to the court _ of to show by what warrant he claims 

king's bench, for the purpose of calling to exercise such office of alderman, or 

upon any person to show by what war- councillor, within twelve calendar 

rant he claims to exercise the office of months after his election to the office of 

mayor, alderman, councillor, or burgess, alderman and councillor; and every 

in any borough, shall be made before election to the office of mayor, alder- 

the end of twelve calendar months after man, councillor, or any other corporate 

the election, or the time when the per- office, which shall not be called in ques- 

son, against whom such application shall tion, by such application to the court of 

be directed, shall have become disquali- queen's bench within twelve calendar 

fied, and not at any subsequent time." months from such election, shall be 

1 Vict. c. 78, s. 23. deemed a good and valid election to all 

" No election of any mayor of any of intents and purposes." 6 & 7 Vict. c. 

the boroughs named in schedules (A) 89, s. 1. 
and (B) , in 5 and 6 W. 4, c. 76, or in 

any borough to which a charter of incor- 6 Kegina v. Preece, 1 Dav. & Mer. 156. 



732 



disqualification of an incumbent of an office arises de die in diem, 
a relator is not precluded from applying for a quo warranto, after 
the expiration of one year from the date of the election or the 
original inception of the disqualification, by the act of parliament 
declaring that, " after the passing of this act, every application 
to the court of king's bench, for the purpose of calling upon any 
person to show by what warrant he claims to exercise the office 
of mayor, alderman, councillor, or burgess, in any borough, shall 
be made before the end of twelve calendar months, after the elec- 
tion, or the time when the person, against whom such application 
shall be directed, shall have become disqualified, and not at any 
subsequent time." 1 Under statutory provisions that "the person, 
or persons, elected shall make the necessary declarations of office 
and qualification, and assume office accordingly," 3 and that "if, 
within six weeks after the* election, or one month after acceptance 
of office, by the person elected, the relator shows, by affidavit, to 
a judge, reasonable grounds for supposing the election was not 
legal, or was not conducted according to law, or that the person 
declared elected thereat was not duly elected, the judge shall direct 
a writ of summons in the nature of a quo warranto to be issued, 
to try the matters contested," 3 the acceptance of office, by a mayor 
elect, which must have occurred one month before the issue of a 
quo warranto, to try the validity of his election, is a formal accept- 
ance, by the statutory declaration and qualification, and not a 
mere verbal acceptance. 4 The lapse of time, between the defend- 
ant's assumption of an office and the institution of an information 
in the nature of a quo warranto, whatever effect it might have, as 
against a private person, cannot bar the right of the common- 
wealth suing by its attorney. 5 

1 7 W. 4, & 1 Vict. c. 78, s. 23 ; Eegina who prosecutes for said state on this be- 



v. Francis, 18 Q. B. 526. 

' 2 Rev. Stat. Ontario, c. 174, s. 156. 

3 Id. s. 180. 

4 Eegina v. Mcintosh, 46 U. C. Q. B. 98. 

5 Commonwealth v. Allen, 128 Mass. 
308. 

Form of quo warranto information. 

State of 

County of 

Be it remembered that George S. Wil- 
liamson, attorney-general of said state, 



' >■ ss. 



half, comes here into the circuit court of 
said county on this tenth day of June, 1886, 
and at the relation of William P. Brown, 

of the city of , in said county, gives 

the court here to understand and be 
informed that, since the adoption of the 
constitution of said state, which is now 
in force, the office of sheriff of said 
county has been, and still is, a public 
office of trust in said county ; that James 
F. Johnson, of said city and county, on 



733 

§ 883. The state is entitled to a quo warranto, on the applica- 
tion of the attorney-general, without a previous rule to show 
cause. 1 Informations, on the relation of private citizens, are filed 
after leave granted, but informations, without relators, are filed, 
in behalf of the state, without leave. 2 "Whereas much vexation 
and expense have been occasioned to defendants, on informations 
in the nature of quo warranto, by the practice of raising issues 
upon various matters distinct from the ground on which the 
information was granted, it is ordered that from henceforth the 
objections, intended to be made to the title of the defendant, shall 
be specified in the rule to show cause, and no objection, not so 
specified, shall be raised by the prosecutor, on the pleadings, with- 
out the special leave of the court or of some judge thereof." 3 
Where the rules of court require that " the objection intended to 
be made to the title of the defendant shall be specified in the rule 
to show cause," a specification, in the rule nisi, for a quo war- 
ranto information against a mayor, will not be fatally defective, if 
it appear from the affidavits that his title to the office of mayor 
is founded upon his title to the office of alderman. 4 It is not 
necessary that the statement, which is intended to be a notice of 
the specific objections on which the validity of the defendant's 
election is to be questioned, should exhibit the evidence and 
grounds on which the relator means to contend that, in conse- 

the first day of March, 1866, in said still does usurp, in said county, against 

county, did use and exercise, and, from the dignity of said state, and to the great 

that day until the time of exhibiting damage and prejudice thereof. And 

this information, has there used and therefore the said attorney-general prays 

exercised, and still does there use and the consideration of the court here in 

exercise, without any legal warrant, or the premises, and that due process of 

right, whatsoever, the said office of law may be awarded against him, the 

sheriff of said county, and, during all said James F. Johnson, to compel him 

the time last aforesaid, has claimed, and to make answer hereto, and to show by 

still does claim, without any legal war- what authority he claims to have, use, 

rant, or right, whatsoever, to be sheriff and enjoy the office, liberties, privileges, 

of said county, and to have, use, and and franchises aforesaid. 

enjoy all the liberties, privileges, and : Commonwealth v. Walter, 83 Perm. 

franchises to said office belonging and ap- St. 105. 

pertaining, which said office, liberties, 2 State v. Stewart, 32 Mo. 379 : States. 

privileges, and franchises he, the said Lawrence, 38 id. 535. 

James F. Johnson, during all the time 3 Keg. Gen. K. B. H. T. 1827 ; 6 B. & 

last aforesaid, without any legal warrant, C. 267. 

or right, whatsoever, has usurped and 4 Begina v. Preece, 1 Dav. & Mer. 156. 



734 

quence of the setting aside of the defendant's election, he himself 
is to be returned in his place. 1 

§ 884. In the absence of statutory regulation, the usual practice, 
in quo warranto cases, is to present to the court a petition, verified 
by affidavit, for leave to file the information ; whereupon a rule nisi 
to show cause is issued, and upon the return thereof, unless 
the respondent shows such cause as puts his right beyond 
dispute, the rule to file the information will be made absolute. 2 
An information may be based upon an affidavit of a person who is 
not a competent relator. 3 On an application for an information, 
the affidavit should show that the relator is properly qualified to 
make the application. 4 An affidavit will be sufficient, if it state 
the deponent's " information and belief " that the party, against 
whom the application is made has exercised the office. 5 Upon an 
application for an information, suggesting that the defendants 
were elected contrary to the provisions of a particular charter, the 
affidavit must show that the charter was accepted, or that the 
usage has been in conformity with the charter. Leave to amend 
an application defective in this respect was refused. 6 

§ 885. On an application for an information against a town coun- 
cillor, on the ground that votes cast for him were thrown away, an 
affidavit stating that, at the time of his election, the fact that he 
was not a householder " was generally and notoriously known, in 
and throughout the borough," is not sufficient. 7 When, on an 
application for a quo warranto, against a constable, the affidavits, 
in support of the rule, stated that, for fifty years, and as long as 
the deponents could recollect, there had been a custom, in the 
town, to elect a constable in a particular mode, which differed 
from that in which the defendant was elected, but did not expressly 
state that they believed such custom to be immemorial, it was held, 
by the court of king's bench, that the affidavit was not sufficient. 8 
Under the English statute the court will not grant a quo warranto 
information, unless it be shown that the party is in office de facto; 

1 Rex v. McMullen, 9 U. C. Q. B. 467. 4 Regina v. Thirlwin, 10 Jur. N. S. 

2 Harris v. Pounds, 66 Ga. 123 ; United 206. 

States v. Lockwood, 1 Wis. [Pinney] 459 ; 5 Rex v. Sly the, 6 B. & C. 240. 

Commonwealth v. Jones, 12 Penn. St. 6 Rex v. Barzey, 4 M. & S. 253. 

365 ; Banks' case, 5 Ohio, 249. 7 Bester's case, 9 W. R. 277. 

3 King v. Brame, 4 Ad. & E. 664; 8 Rex v. Lane, 5 B. & Aid. 488. 
King v. Parry, 6 id. 810. 



735 

and, for this purpose, it will not be sufficient if the affidavit state 
simply that he has " accepted the office," without specifying the 
mode of acceptance. 1 But an information in the nature of a quo 
warranto will be granted against a party, for claiming to be a 
councillor of a borough, on affidavit that he has taken upon him- 
self the office, and acted in that capacity, and has been seen present 
at meetings of the council, acting as a councillor, although the 
nature of the acceptance, or acting, be not further specified. 2 

§ 886. Where an application is made for leave to file an infor- 
mation, to try the title to an office, the affidavit must positively 
verify the facts, on which the prosecutor bases his title. But it 
seems to have been held sufficient to verify on information and 
belief the facts relating to the respondent's usurpation, the dis- 
tinction being made because the applicant is supposed to have 
personal knowledge of his own title, but not necessarily of the 
respondent's usurpation. 3 The affidavit of the contestant, to his 
written statement of the grounds of contest, was that, so far as 
the facts were stated upon his own knowledge, they were true, and, 
so far as they were stated upon the information of others, he be- 
lieved them to be true. It did not appear, in the statement, that 
any fact was stated on information and belief, but each allegation 
was directly and positively made, as upon, the knowledge of the 
contestant. The court held that the facts stated were directly veri- 
fied, there being nothing to which the qualifying clause of the 
affidavit could apply. 4 Counter affidavits may be heard, in answer 
to the rule to show cause. 5 An application, once refused, will not 
be granted, on supplementary affidavits impeaching the counter 
affidavits presented on the first application. 6 On a quo warranto 
information, to test the validity of an election, the fact that an affi- 
ant concurred and acted and advised as town clerk, in the pro- 
ceedings impeached as irregular, if sufficient to estop him from 
appearing as a relator, is not sufficient to exclude his affidavit, 
when the motion is made by a relator legally qualified, although 
the complete ground of the application appears only from the 

: Kegina v. Slatter, 11 A. & E. 505. 5 Barn. & Aid. 488 ; King v. Sly the, 6 

2 Regina v. Qnayle, id. 508. B. & C. 240. 

3 Harris v. Pounds, 66 Ga. 123; King "Wheat v. Bagsdale, 27 Ind. 191. 
V. Newling, 3 T. R. 310 ; King v. Lane, 5 People v. Waite, 70 111. 25. 

6 King v. Orde, 8 Ad. & E. 420. 



736 

affidavit of the party estopped. 1 Under a rule of court, ordering 
" that no rule be hereafter granted for filing any information in the 
nature of a quo warranto, unless, at the time of moving, an affi- 
davit be produced, by which some person, or persons, shall depose 
upon oath that such motion is made at his, or their, instance, as 
relator, or relators," 2 an affidavit, stating that it is the intention 
of the deponent to become relator bona fide, in case the informa- 
tion shall be granted, is insufficient. 3 

§ 887. In Georgia, if an application for leave to file a quo war- 
ranto be made, for the purpose of ousting the incumbent of an 
office, and installing the applicant therein, it must show title to 
the office in the applicant, no other interest in the proceeding- 
being alleged on his behalf ; and if his title to the office depend on 
an election, he cannot assail the election, as wholly invalid, 
because he will thereby destroy his own title. 4 In Missouri a 
relator who seeks to establish his own right to an office, as well 
as to oust the incumbent, must show his own title, interest, and 
qualification. 5 It is not sufficient to state, in the rule, that the 
defendant was not entitled to be appointed and that the relator 
was. 6 In quo warranto for usurping the office, a general aver- 
ment that defendant abandoned the office,. and that he engaged in 
the practice of law, is insufficient. The special facts showing his 
abandonment of the office must be stated. The practice of law 
does not, in itself, necessarily amount to such abandonment. 7 In 
an application for leave to file an information, an allegation that 
a specified number of persons voted illegally, some because minors, 
others because not tax-payers, and others because non-residents, 
the numbers of these several classes not being indicated, nor any 
of the voters named, is insufficient in law. 8 It is not necessary to 
attach documents, as exhibits, to an application for leave to file an 
information in the nature of a quo warranto. 9 

§ 888. On a quo warranto information it is not necessary to 
show the relator's title, even when the statute permits it to be 
shown ; but a complete title must be shown in the respondent, 

] Kex v. Brame, 4 A. & E. See also 5 State v. Boal, 46 Mo. 528. 

King v.. Parry, 6 id. 810. 6 Kegina v. Edye, 12 Q. B. 936. 

2 Reg. Gen. M. T. 3 Vict. 7 State v. Seay, 64 Mo. 89. 

3 Regina^. Hedges, 9 Dowl. 493. 8 Collins v. Huff, 63 Ga. 207. 

4 Collins v. Huff, 63 Ga. 207. 9 Harris v. Pounds, 66 id. 123. 



737 

or judgment will be rendered against him. 1 The state is not re- 
quired to show a demand for the office. 2 At common law it was 
not necessary to show, in the information, whether the office was 
held by charter, or by prescription. 3 But where the statute 
declares that the information "shall consist of a plain statement 
of the facts which constitute the ground of the proceeding," and 
that, if it be filed by any person other than the prosecuting attor- 
ney, "he shall show his interest in the matter," 4 it was held that 
an information, prosecuted on the relation of a person who claimed 
the office by election, was bad if it failed to show the eligibility 
of the relator. 5 In New Jersey the relator, on an information 
against an intruder into an office, or franchise, claimed by such 
relator, must show a title in himself. 6 In an action to try the 
title to a county office, an averment that the relator, at the time 
of the election under which he claims, was a legal and qualified 
elector of the county, and eligible to the office, is sufficient with- 
out a further allegation that he was a citizen of the United States. 7 
When an information is filed, to try the right to a county office, 
by one who claims the office, under an appointment from the 
board of county commissioners, it is not necessary to file a copy 
of the order of the board making the appointment. And if, in 
such case, the appointment is alleged to have been made at a time 
when the county board could not have been in regular session, it 
is not necessary to aver that the requisite notice was given to con- 
vene the board in special session ; the averment that the appoint- 
ment was made by the board is sufficient. 8 In an action to oust 
the defendant from, and induct the relator into, an office, judg- 
ment may be rendered upon the right of the defendant, and also 
upon the right of the claimant, or upon the right of the defendant 
alone. If the complaint set forth be sufficient to call for either 
judgment, it will not be fatally defective as to substance. If the 
complaint state that the defendant has unlawfully intruded into, 
and now holds and exercises, the office, and that allegation be true, 

1 People v. Miles, 2 Mich. 348 ; State v. 3 King v. Bayles, Ld. Raym. 1559. 
Beecher, 15 Ohio, 723 ; People v. May- 4 Rev. Stat. Ind. 1876, ss. 751, 752. 
worm, 5 Mich. 146; People v. Bartlett, 5 State v. Bieler, 87 Ind. 320. See also 
6 Wend. 422 ; State v. Gleason, 12 Fla. State v. Long, 91 id. 351. 

265; Clark v. People, 15 111. 217. See fi MiUer v. English, 1 Zab. (N. J.) 317. 

State v. Kupferle, 44 Mo. 154. 7 State v. Hoeflinger, 35 Wis. 393. 

2 State v. McDiarmid, 27 Ark. 176. 8 Yonkey v. State, 27 Ind. 236. 

47 



738 

the people will be entitled to a judgment of ouster. So far as 
that adjudication is concerned, it is immaterial whether the claim- 
ant sets forth a title to the office in himself, or not. The estab- 
lishment of a title, in the relator, being but a part of the object of 
the suit, a demurrer to the entire complaint, on the ground that 
it does not set forth a title in the relator, is too broad and cannot 
be sustained. 1 

§ 889. The statute of Indiana contained the following provi- 
sions : " The information shall consist of a plain statement of the 
facts which constitute the grounds of the proceeding addressed to 
the court." 2 " Whenever an information shall be filed against a 
person, for usurping an office, by the prosecuting attorney, he 
shall also set forth therein the name of the person rightfully 
entitled to the office, with an averment of his right thereto ; and, 
when filed by any other person, he shall show his interest in the 
matter, and he may claim the damages he has sustained." 3 It was 
held that an information, by a prosecuting attorney, against an 
alleged usurper of a public office, was sufficient, if it contained a 
plain statement of the facts constituting the grounds of the pro- 
ceeding addressed to the court, and set forth the name of the 
person rightfully entitled to the office, with an averment of his 
right thereto ; but that an information, filed by a person claiming 
an interest in the office, must, in addition, show his interest therein, 
by stating all the facts necessary to establish his title to the office, 
and that a failure to aver the eligibility of the relator to the office, 
or the facts showing his eligibility, or the fact that he received the 
highest number of votes cast for the office, was fatal to the informa- 
tion. 4 

§ 890. The writ of quo warranto is not a writ of right. Under 
the English statute of 9 Anne, c. 20, it was always held to be within 
the discretion of the court to grant, or withhold, an information 
in the nature of a quo warranto, upon consideration of the par- 
ticular circumstances of each case. Cases have occurred in which 
courts have refused leave to file an information, at the suggestion 
of a private relator, even when a valid objection to the defendant's 
title has been shown. 5 Courts are now more circumspect, in allow- 

1 People v. Ryder, 16 Barb. 370. 4 Keynolds v. State, 61 Ind. 392. 

2 Kev. Stat. Ind. 1876, 299. 5 Eex v. Parry, 6 A. & E. 810 ; Com- 

3 2 Rev. Stat. Ind. 300. monwealth v. Cluley, 56 Penn. St. 270 ; 



739 

ing informations in the nature of a quo warranto, than they were 
in former times. 1 Courts of the United States assume the right 
to exercise a sound discretion in granting or refusing leave to file 
informations, on the relation of private persons, even in cases of 
defective titles to offices, taking into consideration the position 
and motives of the relator, as well as the necessity and policy of 
allowing the writ, and weighing the public interests involved with 
the injuries complained of. 2 The supreme court of Yermont dis- 
missed a complaint, upon the relation of a private person, praying 
for leave to file an information against the defendants, acting as a 
school committee, on grounds of public interest, independent of 
the alleged defects in the committee's title. 3 If, upon the case 
made by the affidavits, it appear that the judgment would be un- 
availing, the court will refuse the motion. So, if it should appear, 
upon examination of the affidavits, that the facts stated would not 
warrant interference by the court, it would, of course, be improper 
to grant leave to file the information. 4 

§ 891. Where an election for officers of a municipal corporation 
is held on the wrong day, without objection, and by a mere mistake, 
which is not discovered by any person interested either as an offi- 
cer of election, or candidate, or voter, until after the election is 
ended, and there is no proof or charge of fraud, or corrupt motive, 
on the part of any person concerned in the election, which is par- 
ticipated in by a large majority of the qualified voters of the city, 
the court, in the exercise of its discretion, may properly refuse to 
allow an information in the nature of a quo warranto, against a 
defendant, chosen alderman at such election, to inquire by what 
authority he holds and exercises his office. The granting or with- 
holding of leave to file such information, at the instance of a pri- 
vate relator, who makes no claim to the office, rests in the sound 
discretion of the court, even where a valid objection to the defend- 
ant's right is shown. The consideration that a successful prose- 
cution of the writ would result in the suspension of the municipal 

Kex v. Wardroper, 4 Burr. 1964 ; Rex v. Waite, 70 111. 25 ; State v. Bridge Co. 

Dawes, id. 2022 ; Rex«. Sergeant, 5 T. R. 18 Ala. 678 ; State v. Schnierle, 5 Rich, 

467. 299 ; State v. Fisher, 28 Vt. 714 ; Com- 

1 King v. Stacey, 1 T. R. 1. monwealth v. Rugart, 14 S. & R. 216 ; 

2 People v. Keeling, 4 Col. 129 ; State State v. Brown, 5 R. I. 1. 

v. Tolan, 4 Vroom, 195 ; Commonwealth 3 State v. Mead, 56 Verm. 353. 

v. Jones, 12 Penn. St. 365; People v. 4 People v. Tisdale, 1 Doug. (Mich.) 59. 



740 

government, would have great weight with the court in the exercise 
of its discretion. 1 Upon a petition for a writ of quo warranto to 
inquire by what right a person holds the office of prudential com- 
mittee man, for a school district, the writ will be denied, if it 
appear that the defendant was elected without objection, upon the 
mistaken understanding of the voters that there had been no elec- 
tion upon a prior balloting, although, in fact, another person was 
elected, at such prior balloting, who at the same meeting, being 
ignorant of his election, disqualified himself for the office by ac- 
cepting another incompatible therewith. 2 

§ 892. The court will not grant a rule for an information in the 
nature of a quo warranto, in favor of the former occupant of an 
office, on the ground that his dismissal was illegal, if satisfied that, 
upon reinstatement, he may legally be and will be dismissed 
again. 3 It will, in its discretion, refuse to grant leave to file an 
information for the purpose of placing, in the office of township 
clerk, a person who cannot write, when his duties make such a 
qualification indispensable. 4 It will not allow T a quo warranto to 
be filed, to try the title to an office, merely because there has been 
an irregularity in the election, in the absence of bad faith, and 
when the result of the election has not been affected. 5 In Eng- 
land, the court will not make absolute the rule for an information 
in the nature of a quo warranto, if the relator appear to be a man 
in low and indigent circumstances, and there be strong ground of 
suspicion that he applies, not on his own account, nor at his own 
expense, but in collusion with another. 6 Under circumstances 
tending to throw suspicion on the motives of the relator, the court 
will not grant the information, upon the application of a private 
person, where the consequence will be to dissolve a corporation. 7 
The court will not invariably refuse an application for a quo war- 
ranto information because it is made late, but will, in such case, 
require good reasons for the delay. When an application is made 
for an information, for exercising the office of a burgess, an annual 
office, on which no title to any other depends, so late that the 
case cannot come to judgment, before the expiration of the term, 

1 State v. Tolan, 4 Vroom, 194. 5 Eegina v. Ward, 8 L. E. Q. B. 210. 

2 Cate v. Furber, 56 N. H. 224. fi Bex v. Trevenen, 2 B. & Aid. 339. 

3 Eichards' case, 3 L. E. Q. B. Div. 368. 7 Id. 479. 

4 Begina v. Eyan, 6 U. C. Q. B. 296. 



741 

the court will, in its discretion, refuse the information. 1 The court 
will not consolidate several informations, against several persons, 
for distinct offices, for there must be an information against each 
to enable each to disclaim. 2 The common law procedure acts of 
England do not apply to the pleadings in quo warranto. 3 

§ 893. At common law, the first process, under the old writ of 
quo warranto, was the summons ; under the information in the 
nature of a quo warranto, it was a subpoena, or venire facias, fol- 
lowed by a distringas. Without such process a rule to appear 
would not suffice to make the proceeding regular. 4 A rule to show 
cause is sometimes, but not always, issued. 5 An appearance, by 
the respondent, under the rule to show cause, is not an appearance 
under the information. 6 The court cannot acquire jurisdiction, 
to render judgment, without due service of process on the respond- 
ent. 7 

§ 894. The respondent must either disclaim or justify. Upon 
disclaimer, or failure to set up specific facts showing a good title, 
judgment will be rendered against him. 8 In Illinois, the rules of 
pleading, which are applicable to indictments, are also applicable 
to informations in the nature of a quo warranto. 9 A plea to an 
information, for usurping an office, stating that the defendant was 
put into possession, by a mandamus, without setting out any title 
by election, or otherwise, is bad. The use of the words "it 
appearing to the court that the office had become vacant, and that 
the defendant was lawfully entitled thereto," as a preface to the 
plea, does not cure the defect. 10 Where a defendant, on an 
information in the nature of a quo warranto, has two defences, and 
discovers, before trial, that he has set up the weaker of the two, 
he may upon terms abandon it, and rely upon the other. 11 If on 
information, against a person claiming the office of alderman, the 

1 Kegina v. Hodson, 4 Q. B. 648, note. 6 Commonwealth v. Sprenger, 5 Binn. 

2 Hex v. Warlow, 2 M. & S. 75. 353. 

3 Begina v. Seale, 5 El. & Bl. 1. 7 Hambleton v. People, 44 111. 458. 
4 Kex v. Trinity House, 1 Sid. 86 ; Bex 8 Clark v. People, 15 id. 217; State v. 

v. Mayor, Ld. Baym. 426; People v. Harris, 3 Ark. 570 ; Holden v. People, 90 

Bichardson, 4 Cow. 97. 111. 434. 

5 Murphy v. Bank, 20 Penn. St. 415 ; ° Donnelly v. People, 11 111. 552 ; Peo- 

People^. Bichardson, 4 Cow. 106; United pie v. B.B. Co. 13 id. 66; Wight v. 

States v. Lockwood, 1 Wis. (Pinney) People, 15 id. 417. 

359. 10 Begina v. Darley, 2 Jebb. & S. 611. 

11 Bex v. Blatchford, 4 Burr. 2147. 



74:2 

defendant disclaim, and judgment of ouster be rendered against 
him, he will be concluded from showing, in answer to a second 
information, for exercising the same office, that he was duly 
elected before such first information and judgment of ouster, and 
that he was afterwards sworn in, by virtue of a peremptory man- 
damus from the court of king's bench. 1 

§ 895. In England the crown could plead double on an informa- 
tion in the nature of a quo warranto, and could set up distinct 
matters in different replications, and could traverse and demur at 
once. 2 To an information, for usurping the office of justice of 



1 Rex v. Clarke, 2 East, 75. It would 
seem that, if the election were good, and 
only the first swearing in irregular, the 
first judgment should not have been an 
absolute .judgment of ouster, but either 
a judgment of capiatur pro fine only, or 
a judgment of ouster quousque. 

Form of disclaimer. 
[Title of cause.] 

And now, on the 21st day of July, 
1866, before said court, comes the said 
James F. Johnson, by his attorney Sam- 
uel Phillips, and, having heard the in- 
formation read, says that he does alto- 
gether disclaim and disavow the office, 
liberties, privileges, and franchises, in 
the said information specified, and cannot 
deny that he has usurped, without any 
legal warrant, or right, whatsoever, the 
said office, liberties, privileges, and fran- 
chises, in the said information men- 
tioned, and confesses and acknowledges 
the said usurpation, in manner and form 
as in the said information is alleged. 
And thereupon he puts himself upon the 
mercy of the court. 

Form of plea. 
[Title of cause.] 

And now, on the 21st day of July, 
1866, before said court, comes the afore- 
said James F. Johnson, by his attorney 
Samuel Phillips, and, having heard the 
said information read, protests that the 
said information and matters therein 
contained are not sufficient in law, and 
that he, the said James F. Johnson, is 



not bound by the law of the land to 
answer thereto ; and yet, for plea in this 
behalf, he says that he ought not to be 
further impeached, or troubled, by rea- 
son of the premises, because, &c, &c, 
[stating defence.] By virtue whereof he 
the said James F. Johnson, during all the 
time in the said information in that be- 
half mentioned, at the county aforesaid, 
has used and exercised, and still does 
there use and exercise, the said office of 
sheriff of said county, and has there 
claimed, and still does there claim, to be 
sheriff of said county, and to have, use, 
and enjoy all the liberties, privileges, and 
franchises to the office of sheriff of said 
county belonging and appertaining, as it 
was lawful for him to do : "Without this 
that he, the said James F. Johnson, has 
usurped, or does usurp, the said office, 
liberties, privileges, and franchises, in 
manner and form as in the information 
alleged ; all of which said several matters 
and things he, the said Samuel F. John- 
son, is ready to verify, as the court here 
shall award : Wherefore he prays judg- 
ment, and that the aforesaid office, lib- 
erties, privileges, and franchises, in form 
aforesaid claimed by him the said James 
F. Johnson, may, for the future, be 
allowed to him, and that he may be dis- 
missed and discharged by the court here 
of and from the premises laid to his 
charge. 

2 Eegina v. Diplock, 19 L. T. R. N. S. 
380. 



743 

the peace, within a borough, the defendant pleaded that he was 
elected, at a corporate meeting, when a majority of the aldermen 
and capital burgesses were present. The replication was that, at 
the supposed election, five capital burgesses (described by their 
names), and no others, were present, and that they were not the 
major part of the capital burgesses. The rejoinder was that, at the 
election, besides the five capital burgesses named, there were 
present K. and T., being then capital burgesses, and that the five 
capital burgesses named in the application, together with K. and 
T., were the major part of the capital burgesses. The surrejoinder 
was that K. and T., before the election of the defendant, had been 
elected and admitted to and exercised the office of alderman, 
and, at the election of the defendant, were present as aldermen ; 
and that, before the defendant's election, two other persons were 
elected and admitted, as capital burgesses, in the place of K. and 
T. The rebutter was that, at the election of K. and T., as alder- 
men of the borough, the greater part of the aldermen were not 
assembled, and that, after the election of K. and T., and before 
the election of defendant as justice, and whilst K. and T. exer- 
cised the office of aldermen, informations in quo warranto were 
filed against them, and judgment of ouster given, with a traverse 
that K. and T. ever were aldermen. On demurrer it was held by the 
court of king's bench, that, notwithstanding the judgment of ouster, 
K. and T. could not be considered as having attended, as capital 
burgesses, at the election of the defendant, and that judgment 
must be for the crown. 1 

§ 896. A plea that the respondent has been duly declared gov- 
ernor, by the state canvassers, is not a good plea to the jurisdiction 
of the court. 2 It is not necessary f'or the respondent to aver that 
the return of the canvassers showed that he received a majority 
of the votes. 3 Non usurpavit, or not guilty, is not a good plea, 
for it shows no title. 4 At common law a respondent, claiming 
both by charter and by prescription, might before, but not after, 
trial, elect on which ground to base his title. 5 Matter proper for 
the replication, but anticipated in the plea, or answer, is to be 

1 Kex v. Hubball, 6 B. & C. 139. 4 Queen v. Blagden, 10 Mod. 296. 

2 Attorney-General v. Barstow, 4 Wis. 5 Rex v. Leigh. Burr. 2143 ; Kex v. 
729. Grimes, id. 2147. 

3 People v. YanCleve, 1 Mich. 362. 



744 

rejected as surplusage. 1 When a material fact is averred, in the 
information, in an uncertain, or indefinite, manner, the defect is 
reached by a motion to make it more certain ; but when such fact 
is entirely omitted, the defect is reached by demurrer for insuffi- 
ciency. 3 In a quo warranto information a demurrer reaches back 
to the first defective pleading, 3 and admits facts well pleaded. 4 
Where, in an information against a defendant, for exercising an 
office of trust, it is laid to be a public office, and the defendant 
demurs, he cannot afterwards object that it is not an office for 
which quo warranto lies. 5 

§ 897. A plea to an information, for usurping an office, alleged 
a vacancy, and stated that, on a certain day, a meeting of the 
board of Dublin magistrates was held, for the purpose of electing 
an officer, in the place of W., deceased, pursuant to the statute 
for such case made and provided, but did not state that the 
board was convened for that election, or that the meeting was 
duly held for it. The replication averred that a meeting of the 
board, for the purpose of electing an officer, as aforesaid, was not 
held pursuant to the statute for such case made and provided. 
There was a special demurrer to the replication, as traversing 
matter not alleged in the plea and matter of law ; but the replica- 
tion was held good. 6 On an information, for usurping the office 
of mayor of a borough, the plea was that the defendant was duly 
elected, in accordance with the charter ; the replication was that 
there were two candidates ; that fifty good votes, tendered for the 
unsuccessful candidate, were improperly rejected ; that thirty-eight 
persons, who bad been illegally elected and admitted, as bur- 
gesses, were permitted to vote for the defendant ; and that a majority 
of the legal votes tendered was in favor of the other candidate. 
The court of king's bench held that the replication was bad because 
it was not a direct, but only an argumentative, denial of the validity 
of the defendant's election, and, also, because it attempted to put 
in issue the title of the electors (corporators de facto), which 
could not be done, in such a case, in an information against the 
elected. 7 To a return to a quo warranto the crown may reply 

1 Attorney-General v. Bank, 2 Dong. 4 State v. Beecher, 15 Ohio, 723. 

359. 5 Bex v. Neal, Lee's cases, 106. 

2 Keynolds ®. State, 61 Ind. 392. 6 Begina v. Darley, 2 Jebb. & S. 611. 

3 People v. B.B. Co., 13 111. 66. 7 Bex v. Hughes, 4 B. & C. 368. 



745 

several matters. 1 On quo warranto informations, pleadings are 
amendable, as in civil cases. 2 

§ 898. In Pennsylvania motions to quash, based on matters of 
form, will not be granted. 3 In England a quo warranto cannot 
be quashed, on motion, though both parties consent. 4 A motion, 
filed by the respondent, to dismiss an information, on the ground 
of want of jurisdiction in the court to entertain it, admits the 
truth of the averments of the information. 5 On a motion to dis- 
miss an information, for want of jurisdiction, when it is admitted, 
on the record, that the person holding the office of governor 
obtained it by usurpation and intrusion, and without legal right, 
a claim that he has authority to determine that he has a right to 
the office is not founded upon the constitution, or the laws, and 
can only be sustained by a resort to unlawful force. 6 When the 
relator, after obtaining a summons for the trial of a contested 
election, finds his proceedings to be technically irregular, and 
notifies the defendant not to appear, and advises him of his pur- 
pose to proceed de novo, if the objection be a material one, the 
relator will not be precluded from a second application by his first 
ineffectual proceeding. 7 

§ 899. On an information in the nature of a quo warranto the 
burden is on the respondent to show his own title, and not on 
the prosecutor or on the state to establish the prosecutor's title. 8 

Where a plea to an information in the nature of a quo warranto, 
after admitting the vacancy stated in the information, set forth 
that " afterwards * a meeting was held, * between the hours 
of twelve o'clock at noon, and two o'clock in the afternoon, of the 
same day, for the purpose of electing a fit and proper person to 
the office in the room of A., * then deceased, pursuant to the 
statute in such case made and provided," it was held that a traverse, 
which put in issue the fact that such meeting was held pursuant 

'Regina v. Diplock, 10 B. & S. 174. 6 Attorney-General v. Bavstow, 4 Wis. 

* Commonwealth v. Gill, 3 Whart. 228 ; 567. 

Commonwealth v. Bank, 28 Penn. St. 7 Regina v. Smart, 11 U. C. Q. B. 89. 

383. 8 Rex v. Leigh, Burr. 2143 ; People v. 

3 lb. Mayworm, 5 Mich. 146 ; People v. Miles, 

4 Rex v. Edgan, 4 Burr. 2297. - 2 id. 348 ; State v. Gleason, 12 Fla. 

5 Attorney-General v. Barstow, 4 Wis. 265 ; Clark v. People, 15 111. 217 ; State 
567. v. Beecher, 15 Ohio, 723; Abbott of 

Strata Marcella, 5 Coke, 49. 



746 

to the statute, was a good traverse, and not a traverse of matter not 
alleged, the words " pursuant to the statute " referring as well to the 
holding of the meeting, as to the election of the officer. 1 Where 
the matters, alleged in one paragraph of an answer to an informa- 
tion in the nature of a quo warranto, amount only to an argument- 
ative denial of the facts alleged in the information, they can be 
proven under the general denial, if pleaded, and, in that case, 
a demurrer to the argumentative paragraph, though sustained by 
the court, will be harmless. 2 Under the statute an appointment 
to the office, or franchise, made more than six years before the 
quo warranto, may be pleaded. But, in such case, the prosecutor 
may reply to such plea any forfeiture, or surrender, or avoidance, 
by the defendant, of such office, or franchise, happening within 
the six years before the exhibition of the information. 3 On in- 
formation in the nature of quo warranto the plea may be amended 
on leave. 4 To an information in the nature of a quo warranto, 
for exercising the office of sheriff, without receiving the sacrament, 
it is no defence that the party is disabled to receive it, by excom- 
munication, for disobedience of the sentence of the spiritual court. 5 
A defendant to an information in the nature of a quo warranto may 
plead several pleas, exclusive of the statute of limitations. 6 

§ 900. Statutes of limitations, barring proceedings in criminal 
cases, are not applicable to informations in the nature of a quo 
warranto. 7 In a case, decided by the court of king's bench, in 
1791, Buller, J., said that he had long been satisfied, according to 
what he had observed in Rex v. Stacey, 1 Dura. & E. 4, that the 
limitation of twenty years, for informations in the nature of a quo 
warranto, was for much too long a period ; that, at the time when 
the rule was laid down in the Winchelsea cases, the court was 
certainly unapprized of several cases which had been determined 
before that time, Rex v. Pike & Prideau, Tr. 10, Geo. 1, Rex v. 
Johns, there cited, and Rex v. The Mayor of Hilleston, Hil. 12, 
Geo. 1 (3 Durn. &; E. 311, 312), which were decided entirely on 
the ground of length of time, though considerably within twenty 
years. And he suggested, for the consideration of the court, 

: Darley v. Beginam, 5 Ir. L. E. 108. 5 Bead's case, Free. 327. 

2 Keynolds v. State, 61 Ind. 392. 6 Hex v. Autridge, 8 T. K. 467. 

3 32 Geo. 3, c. 58, ss. 1, 2. 7 Commonwealths. Birchett, 2 Va. Cas. 

4 Bex v. Phillips, 1 Burr. 292. 51. 



747 

whether it would not be advisable to adopt some rule for limiting 
the discretion, in future applications, to a shorter period of time. 
The rest of the court concurred in the propriety of this sugges- 
tion, and said they would advise upon the matter. And, on a sub- 
sequent day of the term, Lord Kenyon, Ch.-J., read a general rule, 
to the effect that the court had resolved in future to limit their 
discretion, in granting applications of this nature, to six years, 
beyond which time they would not, under any circumstances, 
suffer a party, who had been so long in possession of his franchise, 
to be disturbed. x On essential points of title the duration of the 
office constitutes no defence against the state. 2 

§ 901. Under an act of parliament, providing that " any defend- 
ant to any information in the nature of a quo warranto, for the 
exercise of any office or franchise, in any city, * may plead 
that he had first actually taken upon himself, or held, or executed, 
the office in question six years, or more, before the exhibiting 
of such information, such six years to be reckoned and computed 
from the day, on which such defendant, so pleading, was actually 
admitted and sworn into such office, or franchise," 3 where a 
person had been sworn into, and had exercised, a corporate 
office, for more than six years, the court, in the exercise of their 
discretion, and without deciding whether the defendant was pro- 
tected by the statute cited, refused to grant an information in the 
nature of a quo warranto, against him, on the ground that he had 
not been sworn in before the proper officer, as it was, in the 
opinion of the court, clearly the intention of the legislature that 
six years' enjoyment of a corporate office should secure the posses- 
sion of it. 4 Under 32 Geo. 3, c. 58, s. 1, the rule, for an infor- 
mation in the nature of a quo warranto, will not be made absolute 
after the expiration of the period of six years, although the rule 
nisi may have been granted before the expiration of that period. 5 
A title to one office, which is a qualification for another, is not 
within 32 Geo. 3, c. 58, s. 3, and therefore, although the party 
had exercised the first for six years, the court made absolute the 
rule for an information for exercising the second office, upon 
a defect of title to the first. 6 A quo warranto will lie for a 

1 Eex 9. Dicken, 4 Durn. & E. 282. 5 Eex v. Stokes, 2 M. & S. 71 ; Kegina 

2 King v. Woodman, 1 Barn. K. B. 101. v. Harris, 11 A. & E. 518. 

3 32 G. 3, c. 58, s. 1. 6 Eex v. Stokes, 2 M. & S. 71. 

4 Eex v. Brooks, 8 B. & C. 321. 



748 

continuing incompatibility, although both offices may have been 
held more than six years. 1 The court refused an information in 
the nature of a quo warranto, to impeach a derivative title, where 
the person claiming an original title had been in the undisturbed 
possession of his office for six years. 2 

§ 902. The English practice of allowing informations after the 
expiration of the term of office is not regarded with favor by the 
courts of the United States. 3 An information may be filed against 
public officers, after the expiration of their term of office, when 
their conviction is necessary to invalidate their acts, which are of 
public concern, and intended to confer rights upon others. Such 
a proceeding against commissioners, appointed, by an act of the 
legislature, to purchase a town-site, and lay off and sell lots, is not 
too late after they have professed to act and to have performed all 
the duties prescribed by the statutes. 4 In Wisconsin, an informa- 
tion commenced during the term of the office claimed may be 
prosecuted to final judgment after the expiration of such terrn. 5 
If a person wrongfully hold a public office, he may be ousted, on 
an information, although the term of the person, entitled to the 
office at the time of the filing of the information, expire before 
the rendition of judgment. 6 

§ 903. The weight of authority is in favor of the position that, at 
the common law, an information in the nature of a quo warranto 
was triable by jury. 7 A statute of Alabama contained the follow- 
ing provision : " It shall be the duty of the judge of the circuit 
court, after the coming in of the testimony so taken as aforesaid, 
to hear and determine whether the said election has been legally 
or illegally conducted, and if, in his opinion, said election has 

1 Rex v. Lawrence, 2 Chitty, K. B. 371. King v. Mayor of "Whitchurch, 8 Mod. 

2 Rex v. Peacock, 4 T. R. 684. 210 ; King v. Bridge, 1 W. Black, 46 ; Rex 
b Morris v. Underwood, 19 Ga. 559. v. Phillips, 1 Burr. 292 ; Rex v. Maiden, 

4 Burton v. Patton, 2 Jones, N. 0. L. 4 id. 2, 135 ; King v. Francis, 2 T. R. 
124. 84 ; Rex «. Bennett, 1 Stra. 101 ; Rex v. 

5 State v. Pierce, 35 Wis. 93. Bell, 2 id. 995 ; People v. Van Slyck, 

6 Commonwealth v. Swasey, 133 Mass. 4 Cow. 297 ; People v. Ferguson, 8 id. 
538. 103; People v. Vail, 20 Wend. 12; 

7 Reynolds?). State, 61Ind. 392 ; Nevill People v. Cook, 8 N. Y. 67; People v. 

v. Payne, Cro. Eliz. 304 ; Rex v. Higgins, Railroad Co. 57 id. 161; People v. 

1 Vent. 366 ; King v. Mayor of London, Railroad Co. 5 Lans. 25 ; Commonwealth 

1 Show. 251, 274 ; King v. Carpenter, 2 v. Woelper, 3 S. & R. 29. 
id. 47 ; King v. Jones, 8 Mod. 201 ; 



749 

been lawfully conducted, he shall certify the fact to the governor, 
who shall thereupon commission the person, in whose favor the 
certificate appears ; and should the judge of the circuit court de- 
termine the election to be void, upon a full hearing of all the facts 
and circumstances, and certifying the same to the governor, the 
governor shall thereupon order a new election." 1 It was held, by 
the supreme court of the state, that this act could not be con- 
strued to confer judicial powers upon the judge of the circuit court ; 
that such a construction would place the statute in conflict with 
the constitution, which declares that "the right of trial by jury 
shall remain inviolate ; " that the proper construction of this act 
was that the judge of the circuit court acted in the character of a 
supervisor of the election, and ascertained the prima facie right 
of one of the claimants to the office, or rejected the claims of all, 
if the election was void, in order that the executive might issue 
the commission to him who appeared to be entitled if the election 
was legal, or that the executive might order a new election, if 
the first was void, so that the office might not remain vacant, 
during the progress of a judicial investigation, to the detriment of 
the public ; and that, notwithstanding this statute, any person, 
entitled to an office by an election, could secure his rights by a 
quo warranto. 2 

§ 904. An information in the nature of a quo warranto, under 
the Indiana statute, is a civil action. Either party is entitled, as 
of right, to demand a trial by jury ; and the refusal of a court to 
grant a trial, by jury, to a party entitled to and demanding it, is a 
substantial error, notwithstanding the fact that it appears, by the 
record, that substantial justice is done. 3 Under a constitution 
declaring that " the trial by jury, in all cases in which it has been 
heretofore used, shall remain inviolate forever ; but a jury trial 
may be waived by the parties, in all civil cases, in the manner to 
be prescribed by law," 4 the parties to an action in the nature of a 
quo warranto, brought by the attorney -general, in the name of the 
people of the state, to try the title to the office of director of a 
railway corporation, are entitled to a trial by jury, and, if equita- 
ble causes of action be joined in such a case, all must be tried by 
a jury, unless a jury is waived. It is not a waiver of the right for 

1 Stat. Ala. Feb. 3, 1840, s. 4. 3 Keynolds v. State, 61 Ind. 392. 

2 Wammack v. Holloway, 2 Ala. 31. 4 Const. N. Y. 1846, art. 1, s. 2. 



750 

a defendant to delay insisting upon it until the plaintiff rests his 
case. 1 When in an action of quo warranto, brought under the 
code of Wisconsin, the issues of fact are few and simple, they may 
be submitted to a jury. 3 On an information the court of king's 
bench submitted to a jury the question whether the defendant's 
residence, in the borough of which he had been elected bailiff, was 
honajide. 3 In England the court has power to change the venue, 
on an information in the nature of a quo warranto. 4 

§ 905. On the trial of a quo warranto information, for exercis- 
ing the office of councillor of a ward having nine, the issue being 
whether the defendant was duly elected, the prosecutor's case was 
that nine other candidates, at the election, had a majority over the 
defendant ; and it was held that the prosecutor was not bound to 
prove, in the first instance, that the nine were qualified to be 
councillors, but might make a case by showing simply that they 
had an actual majority of the votes. 5 In an action in the nature 
of a quo warranto, as between the relator and the defendant, the 
burden is upon the former to make out a better title to the office 
than that of the latter, while, as between the people and the de- 
fendant, the latter may be called upon to show that his possession 
of the office is lawful, for which the production of a certificate of 
election from the proper officer is sufficient. 6 In Kansas a quo 
warranto, enquiring of the defendant by what authority he holds 
a public office, although technically a proceeding between the 
state and the defendant, is, practically, under the provisions of 
the statute, a proceeding instituted for the purpose of trying the 
right to the office, as between the relator and the respondent, and, 
unless the relator makes good his title, judgment cannot be 
rendered in his favor. 7 In Yermont, when the respondent is in 
possession, the presumption is in his favor, and the relator has the 
affirmative of the issue. 8 

§ 906. If, on the trial of an information in the nature of a quo 
warranto, granted against a person for exercising a municipal office, 
on the ground that he had not received a majority of the legal 

1 State v. Kailway Company, 57 N. Y. i Clark v. Eeginam, 3 El. & El. 147. 
161. See also Davis v. Morris, 36 id. 5 Regina v. Ledgard, 8 A. & E. 535. 
569 ; Bradley v. Aldrich, 40 id. 511. 6 People v. Perley, 80 N. Y. 624. 

2 State v. Messmore, 14 Wis. 125. 7 State v. Cobb, 2 Kan. 32. 

3 Rex v. Duke of Richmond, 6 Durn. & 8 State v. Hunton, 28 Verm. 594. 
E. 560. 



751 

votes, it be the purpose to set up more than one of the defeated 
candidates, as the persons who ought to have been declared elected, 
the whole matter is to be opened by the prosecutor to the jury in 
the first instance. 1 On the trial, the party having the affirmative 
must begin. 2 Where, in a case of quo warranto, to determine the 
title to an office, there was a demurrer, and also an answer deny- 
ing a material fact, and a jury was summoned to try the issue 
joined, the defendant, upon a hearing of the demurrer as a distinct 
proceeding, was held to be entitled to open and conclude the argu- 
ment. 3 A relator is not necessarily bound to prove his interest, 
unless the defendant question it, by denying it, and showing, or 
alleging, some ground for his denial. 4 On an information, to oust 
an incumbent of an office holding over, after the expiration of his 
term, in favor of another, holding a certificate of election as suc- 
cessor of the former, the defendant cannot attack such certificate, 
by showing that the holder of it was not elected to the office, but 
a third person was elected. 5 The relator is held to the day on 
which the election is alleged, in his affidavit, to have taken place, 
although the affidavit is founded on information and belief. When 
the affidavit is erroneous, on this point, the defendant is not bound 
to show a regular election on another day. 6 On an information 
in the nature of a quo warranto, a statement of facts, not signed 
by the attorney-general, cannot be considered by the court. 7 

§ 907. At common law, on the old writ of quo warranto, a judg- 
ment for the king was a judgment of seizure into the king's hands, 
where the office was of such a nature as to subsist in the king's ; 
hands, or a judgment of ouster, where it was not of such a nature 
and a judgment for the respondent was that he be allowed his 
office. On disclaimer, by the respondent, judgment was rendered 
for the crown. On confession of the respondent's plea judgment 
was rendered for the respondent. But such confession was not 
conclusive upon the crown or the court in matters of law nor on 
the crown as to matters of fact concerning the public. 8 A judg- 
ment of ouster is not necessarily a declaration either of the relator's 
right, or of a vacancy. A third person may be entitled to the 

1 Regina v. Bradley, 3 L. T. N. S. 853. 6 Rex v. Rolf e, 1 N. & M. 773. 

2 Rex v. Yeates, 1 C. & P. 323. 7 People v. Pratt, 15 Mich. 184; Craw- 

3 White v. Clements, 39 Ga. 232. ford v. Molitor, 23 id. 342. 

4 Regina ®. O'Reilly, 8 U. C. Q. B. 617. 8 Com. Dig. Quo War. c. 5. 
5 Parmater v. State, 102 Ind. 90. 



752 

office. 1 The effect of a judgment of amotion is complete amotion 
from the office. 2 Judgment of ouster may be granted, although 
the usurpation cease before the trial. 3 A judgment of ouster, on 
a disclaimer, is a bar to a reassertion of the same title, on a subse- 
quent information. 4 On judgment by nil dicit, at common law, 
on an information in the nature of a quo warranto, after capiatur 
pro fine, formal judgment of ouster was entered. 5 The court may 
refuse to render judgment of ouster upon default. 6 A statutory 
provision that "if a demurrer, answer, or reply be frivolous, the 
party prejudiced thereby, upon a previous notice of fixe days, may 
apply to a judge of the court either in, or out of, the court, for 
judgment thereon, and judgment may be given accordingly," 7 is 
not applicable to an information in the nature of a quo warranto, 
to try the right to an office, brought pursuant to law in the supreme 
court of the state, but only to actions in inferior courts of general 
original jurisdiction. The "power to hear and determine" 8 the 
cause being vested by the constitution in the supreme court, it is 
not in the power of a single judge to determine it, by entering 
judgment upon a frivolous demurrer, answer, or reply. 9 Judg- 
ments on informations in the nature of quo warranto can only be 
amended in the same term. 1 ° 

§ 908. In the United States an information, against an incum- 
bent of an office, may set forth the claim of another person to the 
office, and the judgment may embrace an order for the admission 
of the rightful claimant, as well as an order for the ouster of the 
unlawful incumbent. 1 1 Judgment of ouster will not be rendered, 
if it appear that the usurper has ceased to exercise the functions 
of the office. 1 3 When the official term expires before judgment in 
favor of relator, there can be no ouster of the defendant, and the 
relator cannot be put into office, but the relator is nevertheless 
still entitled to judgment, and to his costs. 1 3 Where an informa- 

1 State v. Court. 45 Mo. 58 ; People v. 6 Attorney-General v. Barstow, 4 Wis. 
Phillips, 1 Denio, 388. 567. 

2 King v. Serle, 8 Mod. 332; State v. 7 Stat. Wis. c, 132, s. 35. 
Johnson, 40 Ga. 164. • 8 Const. Wis. 1848, art. 7, s. 3. 

3 King v. Williams, 1 W. Black. 93; 9 States. Conklin, 33 Wis. 685. 
People v. Loomis, 8 Wend. 396. See 10 Bex v. Amery, 1 Anst. 178. 
State v. Taylor, 12 Ohio St. 130. " Gand v. State, 10 Ohio St. 237. 

4 King *>. Clarke, 2 East, 75. 12 State v. Taylor, 12 id. 130. 

5 Queen v. Tyrrell, 11 Mod. 235. 13 People v. Seaman, 5 Denio, 409. 



753 

tion clearly set forth the relator's claim to an office, the issue 
joined involved his right thereto, and the court instructed the jury 
that, if they found, from the evidence, that a majority of the votes 
were cast for the claimant, their verdict would be, "we, the jury, 
find the defendant guilty of unlawfully holding and exercising the 
office," and that, if they found, from the evidence, that the defend- 
ant received a majority of the legal votes cast, the form of the 
verdict would be, "we, the jury, find the defendant not guilty," 
it was held that a verdict, in the first form, warranted a judgment 
ousting the defendant from the office, and placing the claimant in 
possession of the same, with the books, papers, and property there- 
unto belonging. 1 In 1808 Lord Ellenborough, delivering the 
opinion of the court of king's bench, said : " The court being of 
opinion that the defendant was well elected and sworn in, the 
remaining question, made in argument, as to the nature of the judg- 
ment which it would have been proper for us to have given, if we 
had been of a different opinion, namely, whether it should have 
been a judgment of absolute ouster, or of ouster quousque, does 
not arise. If it had arisen, it is enough for us to say that, after 
diligent search, we can find no precedent of a judgment of ouster 
quousque upon the files of this court." 2 

§ 909. New trials may be granted on quo warranto informations, 
as in civil cases. 3 In 1788 the court of king's bench granted a 
new trial, in an information in the nature of a quo warranto, 
saying that of late years a quo warranto information had been con- 
sidered merely in the nature of a civil proceeding ; and that there 
were several instances, since a new trial had been refused in the 
case in Strange, 4 in which a new trial had been granted. 5 

§ 910. The refusal of the circuit court to allow an individual to 
file an information, in the nature of a quo warranto, is a final 
judgment, which can be reviewed, on a writ of error, whenever the 
object of the information is to ascertain the relator's rights to the 
usurped office, or franchise. In such case, it is immaterial whether 
the relator proceeds by a rule, on the incumbent, to show cause, 
or asks leave to file the information. The cases in which the 
courts exercise a discretion, in granting or refusing the leave, 

1 State v. French, 17 Iowa, 365. pie v. Sackett, 14 Mich. 243 ; People 

2 Rex v. Courtenay, 9 East, 246. v. Doesburg, 17 id. 135. 

3 King v. Francis, 2 T. R. 484; Peo- 4 Rexfl. Bennett, Str. 101. 

'King v. Francis, 2 T. R. 484. 
48 



754 

seem to be those in which the terms of the disputed offices will 
expire before the information can be decided ; or in which the rela- 
tion is made by persons not claiming the offices. When the 
relation is made, at the instance of one claiming the disputed 
office, and a prima facie case is made by his affidavits, he is 
entitled* to be placed in the proper condition to assert his rights 
in due course of law ; and all disputed facts must be determined 
by a jury. 1 Upon reversal, by the supreme court, of a judgment 
of an inferior court, in favor of the relator, the supreme court will 
direct the entry of a judgment establishing the defendant's right 
to the office, and reinstating him, if he shall have been ousted by 
the judgment reversed. 2 The allowance of a writ of error, brought 
by a defendant upon a judgment for the relator, on an information 
in the nature of a quo warranto, for usurping an office, operates as 
a supersedeas to a conditional order for a mandamus, directed to 
the returning officer, to hold an election for the office in question, 
in consequence of that judgment. 3 

1 State v. Burnett, 2 Ala. (N. S.) 140; v. Sweeting, 2 Johns. 184; Ethridge v. 

6 Com. Dig. Quo. War.; Eex v. Francis, Hill, 7 Porter, Ala. 47. 

2 T. R. 484 ; 3 Bacon Ab. Inf.; Common- 2 State v. Prince, 45 Wis. 610. 

wealth v. Athearn, 3 Mass. 285 ; People 3 Regina v. Lord Mayor, Jebb & B. 39. 



CHAPTER XXXVII. 



MANDAMUS. 



Secs. 

1. To canvass or recanvass votes or 

returns ; to transmit returns ; 
to issue certificates or commis- 
sions .... 911-927 

2. To admit to office . . 928-930 

3. To make or amend record . 931 



Secs. 

4. To hold election, or make nomi- 

nation .... 932,933 

5. To deliver up books and papers ; 

to perform other acts . . 934 

6. To try contest . . . .935 

7. Parties, pleadings, and prac- 

tice . . . . 936-939 



§ 911. While the power of the courts to grant the writ of manda- 
mus, to compel those canvassing officers,whose duties are ministerial 
and not judicial or discretionary, to make correct canvasses and 
certificates, is not questioned, the authorities differ as to the 
conditions of th,e exercise of this power. Among the points of 
difference are the questions whether canvassers can be compelled 
to determine, or certify, the result in favor of particular persons ; 
whether, after an erroneous determination has been made, they 
can be compelled to make a correct determination ; whether, after 
the issue of a certificate, or commission, or other credentials, to 
one person, they can be compelled to make a correct determination 
of the result, in favor of another ; and whether, in such case, 
the proper officer can be compelled to grant a certificate or com- 
mission to the person entitled thereto. 

In a case decided by the supreme court of Massachusetts the can- 
vassers had refused to give the petitioner a certificate, and had 
ordered a new election, at which another person was chosen, who had 
duly qualified, and had entered upon the discharge of the duties of 
the office. It was held that a mandamus would lie to compel the can- 
vassers to give the petitioner a certificate, though he might be com- 
pelled to resort to a quo warranto to remove the incumbent, chosen 
at the second election. The court said : " But the cases relied upon 
by the respondents, if in nowise shaken or overruled, are clearly dis- 
tinguishable from the oue before us, and may stand as sound law 
and yet form no obstacle to the petitioner's application. The cases 
referred to are applications to be admitted to an office. The 



755 



756 

petitioner only seeks for a certificate of his election. This, if he 
obtain it, will not necessarily oust the incumbent, or give the 
petitioner possession of the office. For these purposes he may 
still have resort to a quo warranto, and possibly, before he can get 
qualified, to another mandamus." 1 In another case decided by 
the same court, the canvassers had declared and certified the result 
in favor of the prosecutor's competitor, who had accepted the 
office, taken the prescribed oath, given the required bond, and 
entered upon the discharge of the duties of the office. It was 
held that, notwithstanding these facts, it was competent for the 
court to compel the canvassers, by mandamus, to declare and cer- 
tify that the prosecutor had received the highest number of votes, 
if such was the fact. But the court, on examination, decided that 
the first determination of the canvassers was correct. 2 The court 
of king's bench awarded a mandamus to compel the mayor of 
York to certify to the election of the petitioner, as recorded, 
although the defendant had previously certified to the election of 
another person. 3 If the title of the relator be not clear, manda- 
mus will not lie to compel the grant of a commission. 4 

Mandamus does not lie to compel officers of election to perform 
a duty before the time for its performance arrives. 5 

The court will ascertain the contents of the return as delivered 
to the canvassers and will by mandamus compel them to canvass 
such return. 6 

§ 912. In a case decided by the supreme court of Kentucky, 
the canvassers had given the certificate of election to the com- 
petitor of the petitioner, before the issue of the alternative writ. 
The court awarded a peremptory writ, compelling the canvassers 
to grant a certificate of election to the petitioner. The court said : 
"Nor do we regard it as an available objection that the board has 
already acted in the matter, as in this case. Inferior judicial 
tribunals cannot be controlled, in their action, by mandamus. 
They can be compelled to act ; but, having discretion in all judi- 
cial questions, they must in such cases be allowed to determine 

strong's case, 20 Pick. (Mass.) 484. 3 King«. Mayor, 4 T. K. 699 ; also 5 

See Kister v. Cameron, 39 Ind. 488 ; T. K. 66. 

Grier v. Shackelford, 2 Brev. 549«; Bush 4 State v. Albin, 44 Mo. 346. 

n. Monroe county, 4 W. Va. 371. 5 State v. Harvey, 3 Kan. 88. 

2 Ellis v. County Commissioners, 2 Gray 6 State v. Garesche, 65 Mo. 480. 

(Mass,), 370. 



757 

how they shall act. It is not so, however, with ministerial officers. 
Until they have performed the exact duty imposed upon them by 
law they must be considered as in default ; and, in a <?ase like 
this, it would be a legal anomaly to allow the examining board to 
rely upon the fact that they had issued the certificate of election 
to a party who had not received the largest number of votes, con- 
trary to an express provision of the law, as a sufficient reason why 
they should not be compelled to perform an imperative duty." 1 

The supreme court of Kentucky has also held that, in case the 
canvassers go out of office, pending an application for a man- 
damus to compel them to issue a certificate of election to the 
person shown, by the returns, to have received the highest number 
of votes, the mandamus, when granted, will operate upon such 
persons as may, by law, compose the board of canvassers at the 
time it is granted. 2 

§ 913. In a case decided by the supreme court of Illinois, the 
county clerk, who was the defendant in the mandamus pro- 
ceeding, had already certified to the governor the election of the 
relator's competitor, who had been duly commissioned by the 
governor, and the question was whether these facts were fatal to 
the writ. The court said : " It is objected that the defendant has 
already issued a certificate for another, to whom has been issued 
a commission for the same office. That cannot affect the rights of 
the relator. As well might it be contended that a certificate issued 
to one, without color of an election, would prevent the clerk from 
issuing the certificate to the relator. We do not propose to turn 
the others out of office, on an application for a mandamus. They 
are not parties to this record, and are not bound by this adjudica- 
tion. All that the court can do, and all it is asked to do, in this 
proceeding, is to compel the county clerk to issue to the relator a 
certificate of election, which the proof shows he was entitled to." 3 

§ 914. The statute of Alabama, relating to contested elections, 
was in these words : " It shall be the duty of the judge of the 
circuit court, after the coming in of the testimony so taken as afore- 
said, to hear and determine whether the said election has been legally 
or illegally conducted ; and if, in his opinion, such election has 

1 Clark v. McKenzie, 7 Bush (Ky.) 523. 71; Louisville v. Kean, 18 B. Mon. 9 ; 

2 lb.; Maddox v. Graham, 2 Met. (Ky.) Lindsey v. Auditor, 3 Bush, 233. 

3 People v. Kives, 27 111. 241. 



758 

been lawfully conducted, he shall certify the fact to the governor, 
who shall thereupon commission the person in whose favor the 
certificate appears ; and, should the judge of the circuit court deter- 
mine the election to be void, upon -a full hearing of all the facts 
and circumstances, and certify the same to the governor, the 
governor shall thereupon order a new election." 1 The court held 
that the circuit judge, while exercising the powers conferred by 
this statute, acted as a returning officer, and not as a judge pro- 
nouncing finally on the rights of opposing candidates, and that, 
if he decided in favor of the candidate who was not legally elected, 
he could be compelled, by mandamus, to give a certificate in favor 
of the candidate who was legally elected, but that, inasmuch as 
the writ could not be granted when the party applying for it had 
no specific right, legal or equitable, it could not be granted, on 
the application of a candidate not legally elected, to compel the 
circuit judge to declare the election void. 2 * 

§ 915. But the supreme court of California has held that where 
the statute makes it the duty of the county supervisors to canvass 
the returns of the vote of their county, and to ascertain and declare 
for whom the greater number of legal votes are cast, after the 
supervisors have canvassed the returns, and, in the exercise of 
their discretion, declared the result of an election adversely to a 
party claiming to have been elected, a mandamus will not lie, 
upon , the application of such party, to compel them to issue to 
him a certificate of election. 3 On an application for mandamus, 
in a case where the certificate had been issued to the relator's 
competitor, the supreme court of Michigan said : " Were it clear 
that this matter could be disposed of, from an inspection of the 
returns, we should be disposed to grant the order. The party who 
has received the certificate may deny the correctness of the returns, 
and thus an issue would be raised, which would have to be sent 
down for trial. Or, if an opportunity were not given him, in the 
present case, to do so, and a certificate were given to the relator, 
still the controversy would not necessarily be ended, and a resort 
to proceedings in the nature of a quo warranto would inevitably 
follow. Under such circumstances the only benefit relator would 
gain by the present proceedings would be a certificate of election, 

1 Rev. Stat. Ala. 1434, p. 185, s. 14. 3 Magee v. Supervisors, 10 Cal. 376. 

2 State v. Judge, 13 Ala. 805. 



759 

prima facie entitling him to the office, in other words a shifting of 
the burthen of proof. It is not advisable to resort to mandamus, 
unless substantial, if not final, relief can be given, and, under all 
the circumstances, as the issuing of such a writ is discretionary, 
we think it best not to grant the order." 1 Where the relator's 
competitor had been commissioned and qualified, and had entered 
upon the discharge of the duties of his office, and the relator had 
instituted a contest, according to law, which was pending in the 
circuit court, the supreme court of Illinois held that mandamus 
would not lie to compel the county clerk to issue a certificate of 
election to the relator. The court said : " The circuit court has 
rightfully acquired jurisdiction of the case, and has ample power to 
do complete justice in the premises, and we must refuse to take 
jurisdiction, or to award a peremptory writ." 2 

§ 916. In a case decided by the supreme court of Iowa, the 
writ of mandamus was invoked to compel the county judge, after 
a declaration, by the canvassers, of the result of a vote on the 
question of the removal of the county seat, adverse to such 
removal, to take to his assistance two justices of the peace, and 
declare the result in favor of the removal. The writ was awarded. 
The court said : " The next subject of examination is the answer 
that the duty has already been performed. Inasmuch as the can- 
vassers have rejected the returns from three of the townships, 
which they should have counted, it is legally true that the duty 
has not been discharged ; and what the writ now commands is 
not, in a proper legal sense, to recanvass, but to canvass, the 
returns of that election. It is to do that which was before their 
duty, but which they omitted. What has been done is as if it had 
not been done ; and the judge is now commanded to proceed as 
if no former steps had been taken. To say that the judge is com- 
manded to do a particular act, in a particular way, is not a strictly 
correct use of language. He is commanded to do something which 
he has omitted to do, which is the very object of the writ." 3 In 
Pennsylvania the duties of the canvassers are simply ministerial. 
They cannot inquire into any question of fraud, or go behind the 
returns delivered to them by the clerk. A mandamus will lie to 

1 Sherburne v. Hern, 45 Mich. 160. See also State V. County Judge, 7 Iowa, 

2 People v. Cover, 5 111. 100. 390. 

3 State v. County Judge, 7 Iowa, 187, 



760 

compel them to count votes duly certified to them. When they 
give two different returns or certificates for the same election, 
such returns or certificates are to be regarded as one, and recon- 
ciled, if possible. They cannot evade the effect of a mandamus, 
by giving a certificate under protest. Nor can they decide that a 
supplemental return, duly certified by the clerk, is not a part of 
the return. 1 

§ 917. In a case decided by the supreme court of Kansas, the 
canvassers had declared the plaintiff's competitor elected to the 
office of county clerk and had adjourned, and the first question 
decided by the court was whether, after these facts, the court could, 
by mandamus, compel the canvassers to reassemble and make a 
correct canvass. This question was decided in the affirmative. 
The court said : " The canvass is a ministerial act, and part per- 
formance is no more a discharge of the duty enjoined than no 
performance. And a candidate has as much right to insist upon 
a canvass of all the returns as he has of any part, and may be prej- 
udiced as much by a partial as by a total failure. The adjourn- 
ment of the board does not deprive the court of the power to 
compel it to act, any more than the adjournment of a term of the 
district court would pjevent this court from compelling, by man- 
damus, the signing of a bill of exceptions by the judge of that 
court which had been tendered to him before the adjournment." 2 
When the returns had been duly prepared, and signed by the 
proper officers, but, before they reached the office of the county 
clerk, had been changed, by other persons, as to the votes cast for 
the candidate for one office only, the canvassers were compelled, 
by mandamus, to count the votes returned for the candidates for 
the other offices. 3 An answer to an alternative writ of mandamus, 
to compel the canvassers to canvass the returns of an election, 
alleging that " defendants had fully passed upon said returns and 
canvassed the same," is a mere statement of a legal conclusion, 
and tenders no material issue when the canvassers do not exercise 
judicial functions. 4 

§ 918. The statute of Florida requires the state canvassers to 
meet, " on the first Tuesday next after the fourth Monday in 
November next after any general election, or sooner if the returns 

1 Thompson v. Ewing, 1 Brewst. 67. 3 Lewis v. Commonwealth, 16 Kan. 102. 

2 Lewis v. Commonwealth, 16 Kan. 102. 4 Lyman v. Martin, 2 Utah, 136. 



761 

shall have been received from the several counties," and to " pro- 
ceed to canvass the returns of such election, and determine who 
shall have been elected, by the highest number of votes, to any 
office, as shown by said returns." 1 The state canvassers met, on 
the day fixed by the statute, and adjourned to a later day, when 
they reassembled and canvassed all the returns which had been 
received up to the time of their first meeting, but failed to canvass 
certain returns received during the interval between their first and 
second meetings, and thereupon adjourned. On an application 
for a mandamus, to compel the board to canvass the supplementary 
returns, the supreme court of the state held that it was the duty 
of the canvassers to canvass the returns received after the time 
fixed by the statute for their first meeting ; that, not having per- 
formed this duty, they were noi fundi officio ; that their adjourn- 
ment sine die did not end their powers ; and that they could be 
compelled by mandamus to reassemble and complete the canvass. 2 
In another case the state canvassers had determined that the 
relator's opponent was shown, by the returns, to have been elected 
to the office of lieutenant-governor of the state of Florida, before 
the writ of mandamus issued ; but the court held that it had power 
to grant a writ of mandamus, directing the board of state can- 
vassers to reassemble and complete a canvass of the returns, and 
to determine and decide that the relator was shown, by the returns, 
to have been chosen to the office. 3 

§ 919. It is a provision common to the federal and state consti- 
tutions that each house of the legislature shall be the judge of the 
elections, returns, and qualifications of its own members. The 
question arises whether the jurisdiction so conferred is exclusive. 
Do such constitutional provisions withhold from the courts all 
power to inquire, in any cases, into the elections and returns 
of members of legislative bodies ? Does the word returns, when 
so used, refer to the returns of the precinct, county, district, and 
state canvassers, and to the certificate, or proclamation, of the 
governor ? Does the provision exclude the power of the courts to 
interfere, by mandamus, for the purpose of compelling either of 

1 Stat. Fla. 1868, p. 8, s. 28. Judge,7Iowa, 186; disapproving the first 

2 State v. Canvassers, 13 Fla. 55. The and approving the others. 

court referred to the cases of People v. 3 State v. Canvassers, 13 Fla. 55 ; State 

Supervisors, 12 Barb. 218 ; People v. Hil- v. Canvassers, 17 id. 29. 
Hard, 29 111. 413 ; and State v. County 



762 

these tribunals or officers to make returns, or to correct erroneous 
returns ? In a case, decided by the supreme court of Illinois, the 
relator had been a candidate for the house of representatives of that 
state. The defendant, who was county clerk, before the alternative 
writ of mandamus was granted, but after application therefor was 
made, had issued a certificate of election to the relator's competitor ; 
and this fact was made one of the grounds of a motion to quash the 
writ. The court awarded the mandamus and said : " Upon the 
remaining ground of objection that the county clerk had issued a 
certificate of election to another party, prior to the issuing out of 
this writ, it is only necessary to say that it is in proof that the 
certificate was not issued until after notice of this application for 
this writ. When the fact was brought home, to the clerk, that 
this application was made, it would have been quite decorous and 
proper to pause in his action, and await the decision of the court ; 
the more especially as by issuing a certificate, to a party not enti- 
tled, the right of the true claimant could not be weakened thereby. 
The power remains to the clerk to issue the certificate to the party 
this court may deem entitled to it. The People, <fec, v. Rives, 27 
111. 246. There are no other means known to the law by which 
this result can be obtained. Though the house of representatives 
is the sole judge of the qualifications of its members, this applica- 
tion has no reference whatever to the point of qualifications. Its 
sole purpose is to procure the requisite evidence to present to that 
body of a prima facie right to a seat in it, independent wholly of 
the question of qualification. It is clear, then, that the appropriate 
remedy is not with the house of representatives. The only remedy 
of the relator, the only means by which he can obtain evidence of 
the right claimed, is by this compulsory writ of mandamus." 1 

After the canvass, the clerk had given, to one of the candidates, 
a certificate of election to the senate of Minnesota. The court held 
that, although it had no power to decide upon the right of a party 
to a seat in the legislature, it had the power to compel the proper 
officers to furnish parties entitled with the necessary credentials 
and, to that end, to compel the county clerk to issue a new cer- 
tificate to the plaintiff. And accordingly the writ of mandamus 
was awarded. 2 In Mississippi, when the returns of an election of 

People v. Hilliard, 29 111. 413. See 2 O'Ferrall ?>. Colby, 2 Minn. 180. 

also People v. Akin, 17 id. 167. 



763 

representative in congress have been received by the secretary of 
state, the votes summed up, and the result declared, by him, and a 
commission has been issued, by the governor, to the candidate whom 
the secretary of state has declared elected, the opposing candidate 
is not entitled to a mandamus, to compel the secretary of state to 
make another summing up of the votes in which the petitioner 
shall be credited with votes, with which the secretary of state did 
not before credit him, and to declare the petitioner elected. In 
such a case the courts have no power to adjust the rights of the 
parties ; but the candidate, who considers himself aggrieved, must 
seek redress by a contest in the manner prescribed by law. x In a 
proceeding to compel, by mandamus, the reassembling of a board 
of county canvassers, and a recount of the votes cast, in the county, 
for candidates for the state legislature, if it appear that the state 
canvassers have, since the institution of the proceeding, acted 
upon the returns transmitted to them, and issued a commission to 
the person shown by the returns to have been elected, judicial 
action will be unavailing, and the .proceeding will be dismissed. 2 
It is competent for a state court to require the proper can- 
vassers, on mandamus, to determine, in accordance with the 
law, which of the candidates, for the office of representative in 
congress, is entitled to the certificate of election. In such case 
the power of determining the right to the office is vested in the 
house of representatives itself, but the court has power to deter- 
mine whether a particular county return is to be included in the 
canvass and statement of the votes cast for the office. 3 

The constitution of Arkansas contained this provision : " Each 
house shall choose its own officers, determine the rules of its pro- 
ceedings, judge of the qualifications, election, and return of its 
members." 4 It had been enacted, by the legislature, as follows : 
" On the fifth day after the election, if all the returns have been 
received, the clerk of the county court shall proceed to open and 
compare the several election returns, which have been made to 
his office, and make abstracts of the votes given for the several 
candidates for each office, on separate sheets of paper ; and such 

1 Myers v. Chalmers, 60 Miss. 772. turns" of which, under the constitu- 

2 O'Hara v. Powell, 80 N. C. 103. tion, the house is " the judge " do not 

3 State v. Canvassers, 36 Wis. 498. The include the county returns, 
court evidently assumes that "the re- 4 Const. Ark. 1864, art. 5, s. 4. 



764 

abstracts, being signed by the clerk, shall be deposited in the office 
of the clerk of the county court, there to remain." 1 " Each clerk 
of the county court shall, within two days after the comparison 
and examination of the returns of any election, deposit in the 
nearest post-office, on the most direct route to the seat of govern- 
ment, certified copies of the abstracts filed in his office of the 
returns of the election of all executive, judicial, and legislative offi- 
cers, directed to the secretary of state." 2 It was held, by a divided 
court, that mandamus would lie to compel the clerk to correct his 
abstract, so as to make it show what the precinct returns showed, 
as construed by the court. The dissenting justice was of the opinion 
that to judge what were proper returns, and to compel the clerk 
to make out such returns, was to exercise the power of a judge of 
the returns of members of the legislature, and that if, under the 
state constitution, the court could do this, it could also act as the 
judge of the election and qualifications of the members. 3 

§ 920. In an application for a mandamus, made to the supreme 
court of New York, it was alleged that the board of county can- 
vassers had illegally and unjustly rejected the returns of one 
precinct, and had illegally and unjustly refused to canvass the votes 
of that precinct, and, as a consequence, had erroneously deter- 
mined the result of the election, as to one of the county officers, 
and the court was asked to command the board to make a new 
canvass, for the purpose of correcting the error. The statute 
contained no provision authorizing adjourned meetings of the 
board, except for the purpose of obtaining corrections of precinct 
returns, in which case the adjournment was limited to three days. 4 
The court held that, to entitle the applicant to the mandamus, it 
must appear that he had a legal right to demand that some- 
thing should be done by the defendants, which they had not 
done ; that it must appear that he had no specific legal remedy for 
the enforcement of that right, and must also appear that it was 
still in the power of the defendants to perform the acts required ; 
that after the board of canvassers had met and organized accord- 
ing to law, and had proceeded to estimate the votes of the county, 
made the statement prescribed by the statute, determined the 
result of the election, and caused a copy of their determination 

1 Stat. Ark. 1868, p. 322, s. 39. 3 Howard v. McDiarmid, 26 Ark. 100. 

2 Id. p. 323, s. 42. 4 Stat. N. Y. 1844, c. 231, s. 16. 



765 

to be published, filed and made a part of the record, and had dis- 
solved, its members were fundi officio, and a mandamus would 
not be granted to compel them to reorganize and canvass the 
omitted precinct return, and change their determination of the 
result accordingly, even though it appeared that they had erred 
in the rejection of the precinct return in question. 1 

§ 921. Upon an application for a writ of mandamus against an 
inferior tribunal, corporation, or board, under a statutory provision 
that the writ " may be issued to an inferior tribunal, corporation, 
board, or person, to compel the performance of an act which the 
law specially enjoins as a duty resulting from an ofiice, trust, or 
station," 2 it is essential that the applicant show, in the first instance, 
that such tribunal, corporation, or board, exists, with the power 
and duty to perform the act required under the writ. When the 
statute contemplates the entire completion of the duties of the 
board of county canvassers within twenty days after the close 
of the election, 3 the canvassers, having once canvassed the votes 
and adjourned sine die, are fundi officio. They have no right, or 
power, to reconvene and reconsider their action, or correct errors in 
their proceedings. Nor can a court revise their powers or exer- 
cise legal control over them. 4 Under a statute making it the duty 
of the county canvassing board, after concluding their count, to de- 
clare the election of the person having the greatest number of votes, 
and to make proclamation, " at the court house, of the voting 
in their county for all the persons voted for, and the number of 
votes cast for each," 5 mandamus will not lie, on the application of 
a candidate, to compel the board to reassemble and recount the 
votes, after having declared and proclaimed the election of another 
candidate. 6 Where the duties of the county canvassers are 

1 People v. Supervisors, 12 Barb. 217. was constituted, whether legally or not, 

The judge delivering the opinion of the nas Deen dissolved, it is incapable of 

, -i being reanimated. Any act it should 

attempt to perform, even though it be 
"I will not say that a state of facts done in obedience to the mandate of this 
might not occur which would call upon court, would be extra official and nuga- 
the court to interfere, by mandamus, tory." 
to control the action of a board of can- 
vassers; but this can only be done 2 Kev. Stat. Minn. 1851, c. 83, s. 4. 
while such board is in existence. And 3 Id. c. 5. 

even then the nature of the duties to be 4 Clark Vt Buchanan, 2 Minn. 346. 

discharged by it is such that it can 5C! . . XT ^ 10^ n nrrc oa 01 

rarely be either expedient or practicable Stat N " C 1876 ~ 7 ' c ' 275 ' SS ' 30 ' 31 " 

thus to interfere. But when the board, ' Sw a m *>• McKae, 80 N. C. 111. 
having performed the office for which it 



766 

ministerial, and those of the state canvassers are judicial and 
revisory, mandamus does not lie against the county canvassers, 
to compel the performance of their duties, because a remedy 
can be had on appeal to the state board, but when the powers 
of the state canvassers are also ministerial, mandamus is the 
proper remedy to compel the county canvassers to perform their 
duties. 1 

§ 922. In a proceeding by mandamus, in Missouri, to compel a 
board of canvassers to count a vote, as returned by the officers of 
election, when it appears that an alteration has been made in the 
return of the vote, but the canvassers do not know whether it was 
made before or after the return was delivered to them by the officers 
of election, the circuit court will inquire and determine what the 
return, as delivered, actually was, and will compel them to make 
the count accordingly. 2 When the county commissioners of elec- 
tions have canvassed the returns, and declared the result, and 
transmitted, to the secretary of state, " a statement of the whole 
number of votes given, in their county, for each candidate voted 
for, in such county, for any office at such election," 3 their con- 
nection with the returns has terminated, and they cannot be com- 
pelled, by mandamus, to reassemble and recanvass such returns. 4 
When the statute empowers a board of canvassers to examine the 
ballots, and publish a list of the names of the persons chosen, and 
this is done, a subsequent declaration by the canvassers is imma- 
terial. They are fundi officio. Whether the successful candidates 
are, or are not, removable by quo warranto, a mandamus cannot 
issue. 5 

§ 923. It is enacted, in the Iowa code of 1851, that : "As soon 
as the returns, from all the townships, are received, the county 
judge, taking to his assistance two justices of the peace of his 
county, shall open and examine the several returns, and make 
abstracts, stating, in words written at length, the number of ballots 
cast, in the county, for each office, the name of each person voted 
for, and the number of votes given to each person for each dif- 
ferent office." 6 In an act relating to elections held for the relocation 
of county seats, it is provided that " such election shall be con- 

' Mackey's case, 15 S. C. 322. 4 Oglesby v. Sigmun, 58 Miss. 502. 

2 State v. Garesche, 65 Mo. 480. 5 Kex v. Mayor, 7 A. & E. 215. 

3 Code Miss. 1880, s. 140. 6 Iowa Code, 1851, 49. 



767 

ducted as elections for county officers." 1 It was held that under 
these statutory provisions a writ of mandamus, to compel a 
recanvass of votes by the county canvassers, was properly directed 
to the county judge alone. The court said : " The writ is directed 
to the proper person, that is the county judge. One conclusive 
reason against directing it to the two justices is that they may 
have gone out of office before the writ issues. And again they 
are not a board of such a nature that no other can perform the 
duty. The county judge is the only permanent member ; and he 
calls to his assistance such other two, being justices, as he sees 
fit. And, for the same reason, they are not such a board that 
their dissolution renders it impracticable that the duty should be 
performed. If it has not been done, it may still be done, by a 
command to the judge to take to his assistance two proper 
persons." 2 

§ 924. In a case decided by the supreme court of Missouri the 
county canvassers had canvassed, but had not returned, the vote 
of the precinct in controversy, before the alternative writ of man- 
damus was issued. In their canvass they had estimated the vote, 
cast for one of the candidates, at 292, instead of 272. The latter 
was the number returned by the precinct officers ; but their return 
had been altered by some person unknown, after it reached the 
office of the clerk. The court said : " Where, however, the can- 
vassing officers know that an alteration has been made, but do 
not know, though they may have good reason to suspect, that 
such alteration was made after the poll-books came to the custody 
of the county clerk, as they cannot take testimony, and cannot, 
therefore, ascertain what figures were certified by the judges and 
clerks of election, can the circuit court, in a proceeding, by man- 
damus, to compel such canvassing officers to count the votes 
certified by the judges and clerk of election, determine for them 
which is the vote so certified ? This is the precise question pre- 
sented by the appeal. We think it can. If it cannot, a proceed- 
ing by mandamus, in such case, must be utterly nugatory. A 
peremptory writ of mandamus simply to' count the vote certified 
by the judges and clerks, without ascertaining which was the vote 
so certified, would be mere brutum fulm,en, as it could never be 
determined, from a certificate of obedience, whether the writ had 

1 Laws Iowa, 1855, 72. 2 State v. County Judge, 7 Iowa, 186. 



768 

in fact ever been obeyed. If it be left to the canvassers to deter- 
mine what the true return is, no attachment for a violation of the 
writ, in that regard, could ever issue ; for the court could never 
determine that its writ had been violated, without first deciding 
what vote should have been counted. The object of the writ, in 
the present case, was to compel the counting of the true return ; 
the writ could not issue until there had been a failure, or refusal, 
to count such return ; and no such failure, or refusal, could be 
found to exist until the court had determined which was the true 
return." 1 

§ 925. Under a statute declaring that " the returns of said 
election shall be made to the ordinary of said county ; and, after 
examining the same, and deciding upon all questions which may 
arise out of said election, he shall proclaim the result as afore- 
said," 3 it was held that mandamus would not lie, to compel the 
ordinary to canvass the returns, after they had been canvassed by 
the superintendents, unless an application for such canvass was 
made before he had declared the result of the election. 3 Under 
a statute declaring that " all applications for proceedings before 
the ordinary, sitting for county purposes, shall be by petition in 
writing, which shall plainly and distinctly set forth the grounds of 
the proceedings desired," 4 it was held that mandamus would not 
lie, to compel the ordinary to canvass the returns of an election 
relating to fences, after they had been canvassed by the superin- 
tendents, unless an application for such canvass had been duly 
made in writing. 5 At an election, held for the relocation of a 
county seat, votes were cast for three different towns, A., B., and C. 
Neither place received a majority of all the votes. The canvassers, 
rejecting certain returns, declared that A. and B. had received the 
highest number of votes, and were to be voted for, according to 
law, at a second election. A canvass of all the returns would have 
shown A. and C. to have received the highest number of votes. At 
the second election votes were cast for A. and B. only. A. received 
the highest vote, and was declared the county seat. In obedience 
to an alternative writ of mandamus, sued out in behalf of C, com- 
manding the commissioners to make a correct canvass of the first 

1 State V. Garesche, 65 Mo. 480. 4 Code Ga. 1882, s. 4123. 

2 Code Ga. 1882, s. 1455. 5 Dyson ». Pope, 71 Ga. 205. 

3 Dyson v. Pope, 71 Ga. 205. 



769 

vote, or show cause to the contrary, they canvassed that entire 
vote, and declared A. and C. to have received the highest votes at 
the first election, and ordered a third election, to decide between 
those two places. Such election was held, and C. received a 
majority of the votes, and was declared the county seat. But it 
was held, by the supreme court, that, inasmuch as no proceedings 
to contest the validity of the first canvass were had, until after the 
second election, that election was final, and the subsequent recan- 
vass of the first vote and the third election were unauthorized and 
void, and A. was the county seat. 1 

§ 926. The organic act for the territory of Montana contained 
the following provisions : " The judicial power of said territory 
shall be vested in a supreme court, district courts, probate courts, 
and in justices of the peace. The jurisdiction of the several courts, 
herein provided for, both appellate and original, shall be as limited 
by law : Provided, That * the said supreme and district courts, 
respectively, shall possess chancery as well as common law juris- 
diction." 2 The territorial law provided that the writ of mandamus 
might be issued " by any court in this territory except a justice's, 
probate, or mayor's court, to any inferior tribunal, corporation, 
board, or person." 3 It was held that the supreme court of the 
territory had original jurisdiction to issue the writ of mandamus, 
to compel the governor to canvass votes according to law. 4 

§ 927. Under a statute authorizing the electors to vote upon the 
location of a county seat, and providing " that, in all respects, the 
said election shall be held, conducted, and determined as is now 
provided by law for the holding of elections of state and county 
officers," mandamus lies to compel the chairman of the board of 
county canvassers to forward, to the governor and secretary of 
state, " the returns; poll-lists, and all papers appertaining to the 
election," as required, by law, in case of the election of state and 
county officers. 5 When the governor is required by law to issue 
a commission, in accordance with the determination of the board 
of county canvassers, the court will not award a mandamus, 
directing a commission to be issued in conflict with such determi- 
nation, although it appear affirmatively that the decision of the 

1 Light v. State, 14 Kan. 489. 4 Chumasero v. Potts, 2 Mont. 242. 

2 Stat. U. S. May 26, 1864. 5 State v. Chairman County Canvassers, 

3 Stat. Mont. 1872, p. 141, s. 518. 4 S. C. 485. 

4:9 



770 

board of canvassers was based upon illegal evidence, and is con- 
trary to the truth of the case. 1 The refusal or neglect of the can- 
vassers to exclude from their canvass the votes of persons who 
had not paid taxes, as required by law, cannot be remedied by 
proceedings in equity. Mandamus is the proper remedy. 2 A 
pending suit, instituted by a person claiming an office, to enjoin 
adverse claimants from acting as officers, is no bar to a mandamus 
to obtain a certificate of election. 3 An act of congress, relating to 
territorial courts, and declaring that no party " shall be deprived 
of the right of trial by jury, in cases cognizable at common law," 4 
is not applicable- to proceedings, on mandamus, to compel the 
governor to canvass votes cast at a territorial election. 5 

§ 928. A mandamus will not be granted, to admit a person to 
an office, while another is in, under color of right. A conflict 
of title to the office cannot be determined by mandamus ; it can only 
be determined by a direct proceeding, on an information in the 
nature of a quo warranto or in a statutory contest. 6 A mandamus 
will not be granted, if the title of the applicant to the office, by virtue 
of which he makes the application for such mandamus, be drawn in 
question by the pleadings. He must first establish his right to the 
office by the proper proceedings. He cannot do this on applica- 
tion for mandamus. 7 When a discretion is vested in an inferior 
jurisdiction, and that discretion has been exercised, a mandamus 
will not be granted, because the court has no power to control that 
discretion. 8 The writ of mandamus, even when used to place a 
person in possession of an office, confers no right. It merely 
places him in a position to enable him to assert his right. When 
the object of the mandamus is to compel the person, in possession 
of the office, to perform an act pertaining to it, which it is his 
duty to perform, and which is required to place the plaintiff in a 

1 State v. Governor, 1 Dutch, 331. 15 Minn. 172 ; Kex v. Colchester, 2 T. K. 

2 Kemp v. Ventulett, 58 Ga. 419. 259 ; Duane v. McDonald, 41 Conn. 517 ; 

3 People v. White, 11 Abb. Pr. 168. State v. Dusman, 39 N. J. 677; Warner 
4 18 Stat. U. S. 27. v. Myers, 4 Oregon, 72 ; King v. Win- 

5 Chumasero v. Potts, 2 Mont. 242. Chester, 7 A. & E. 215 ; People v. Cor- 

6 Fitch v. McDiarmid, 26 Ark. 482 ; poration, 3 Johns. Cas. 79. 

State «. Auditor, 36 Mo. 70; Doughty's 7 Anderson *>.Colson, 1 Neb. 172; United 

case, 6 Ired. 155; People v. Stevens, 5 States v. Guthrie, 17 How. 305. 

Hill, 616; Meade v. Dunn, 1 Minor (Ala.) 8 Magee v. Board of Supervisors, 10 

46; Beal v. Kay, 17 Ind^ 554; Reginav. Cal. 376. 

Derby, 7 A. &E. 419 ; State v. Sherwood, 



771 

position to assert his rights, the mandamus will be issued, even 
though the immediate result may be to place the defendant out 
of, and the plaintiff in possession of, the office. 1 If an officer be 
ousted, by the election of another in his stead, and the election 
be merely colorable, mandamus will lie to permit the ousted party 
to exercise his office, but not to restore him to his office. If such 
election and ouster be bona fide, the court will not grant a man- 
damus in favor of the party displaced ; the proper proceeding is 
by quo warranto against the party holding the office de facto. 2 

When an office is full, by a void election, and the right to ap- 
point to it cannot be tried in any other way. the court will grant 
a mandamus to try the right. 3 

§ 929. When a town council, upon insufficient grounds, and in 
an illegal manner, adopts a resolution, removing an alderman, and 
declaring his office void, and, at the next meeting, rescinds the 
resolution, mandamus does not lie, to compel the corporation to 
restore him, on the ground that he may be liable to prosecution if 
he continue to act merely upon the rescission of the resolution. 4 
The court having decided, on an information in the nature of a quo 
warranto, for usurping the office of treasurer of the county of the- 
city of Dublin, that the defendant was not duly elected, on ac- 
count of the rejection, by the lord mayor, of certain votes which, 
if allowed, would have made a majority for the relator, and judg- 
ment of ouster having been entered, the relator moved for a per- 
emptory mandamus, to compel the lord mayor to take the proper 
steps to have him admitted ; and, at the same time, the defendant 
moved for a peremptory mandamus, to compel the lord mayor to 
proceed to a new election ; but the fact that there had been a valid 
election (which was assumed on the argument, in the quo warranto 
case), being controverted on these motions, the court refused to 
conclude the rights of either party, or of the electors, by granting 
a peremptory mandamus, in either form ; but issued an alterna- 
tive writ of mandamus, directing the lord mayor to take the proper 

1 Brown v. O'Brien, 2 Ind. 423. ing to recognize the officer, may dispute 

2 Rex v. Mayor, 6 A. & E. 349. his right by refusing to pay those fees, 

3 Rex v. Stoke Damerel, 2 Har. & Woll. or, if the fees are received, the party 
346. In this case Lord Denman, chief may bring his action for the extortion, 
justice, said : " Here it is probable that and recover them back, and thus try the 
the party will demand his fees, and it is right to the office. 

a clear rule of law that a party, unwill- 4 Regina v. Ryde, 28 L. T. N. S. 629. 



772 

steps, therein specified, for admitting the relator, in order that the 
question as to the validity of the election might be raised on 
return of the writ. 1 

§ 930. Upon affidavits showing that one of two candidates for 
a municipal office had a majority only by counting illegal votes, 
the court of king's bench, in 1805, granted a mandamus to the 
corporation, to admit and swear in the other, who appeared, on 
the affidavits, to have received the greater number of legal votes, 
although the first had been admitted and sworn into the office. 2 
It was held, by the supreme court of Virginia, that the writ of 
mandamus was the proper remedy to compel the judges of the 
district court to admit to the office of clerk a person who had been 
ousted by the illegal appointment of another person. 3 The board 
of county supervisors cannot go behind the statutory certificate 
of the election of a supervisor. Mandamus will lie to compel 
them to admit the person declared elected. They have no right, 
in the absence of statutory provision therefor, to determine the 
right to a seat in the board, when an election thereto is contested ; 
the question is one for judicial cognizance. 4 On mandamus to 
the archdeacon of St. Asaph, to swear Bees, a church-warden of 
a parish within his archdeaconry, for the year ensuing, he being 
duly elected by the parishioners, according to custom there used, 
time out of mind, the archdeacon, in his return, confessed the 
custom, and admitted that the right of election was in the parish- 
ioners, and that Bees was elected and nominated church-warden, 
according to the custom, but certified that Bees was a poor dairy- 
man, and had no estate, and that he was persona minus habilis 
et idonea for that office, and, therefore, he refused to swear him. 
But the court decided that a peremptory mandamus should go ; 
for an archdeacon had no power to refuse to swear a church- 
warden, who was duly elected and nominated, according to custom. 5 
It was held by the supreme court of Kansas that, notwithstanding 
the statutory provision, relating to elections held for the location 
of county seats, conferred upon the electors " the right to contest 
the validity of the vote, to be given at the said election in that 
behalf, upon the question of the adoption of such law, in the 

'Kegina-y. Smith, 1 Jebb. & S. 468. 4 Robinson v. Supervisors, 48 Mich. 

2 Kex i). Bedford Level, 6 East, 356. 321. 

3 Dew v. Judges, 3 Hew. & Munf. 1. 6 Rex v. Rees, 1 Carth. 393. 



773 

manner hereinafter provided," 1 it was competent for the court, in 
proceedings in mandamus, to adjudicate questions of fraud in the 
election. 2 

§ 931. The power of the court, by mandamus, to require the 
clerk of a town to amend his record relating to an election, upon 
the application of any person who shows a legal right, is not to 
be disputed. These records are public records ; and when the 
rights affected by an error iu them are of a public character, the 
writ should generally be granted, as a matter of course, ex debito 
justicice, upon a proper case shown. The applicant must show 
that a clear legal and equitable right exists, and that there is no 
other specific legal remedy for its enforcement. The court will 
refuse it, if it be manifest that it must be fruitless or useless. 3 
Mandamus will not lie to compel a member of a board of state 
canvassers, who is also secretary of the board, to record the pro- 
ceedings of the board, until such proceedings shall have been had 
by the board, and the record thereof refused by the secretary. 4 
Under a constitutional provision that the moderator shall " sort 
and count the said votes, and make a public declaration thereof, 
with the name of every person voted for, and the number of votes 
for each person, and the town clerk shall make a fair record of 
the same, at large, in the town book," it is the duty of the town 
clerk to record the moderator's public declaration, and not his 
sorting or counting. And where such daslaration gives a candi- 
date for the office of representative in congress more votes than 
the sorting and counting of the ballots showed him to have re- 
ceived, and the town clerk correctly records the declaration, he 
will not be compelled, by mandamus, to amend the record by in- 
serting the sorting and counting of the ballots. The court has no 
power to go behind the record and inquire which candidate, in fact, 
received the largest number of legal votes, nor to order the clerk 

'Laws Kan. 1869, 101. 4 B. & C. 899 ; Rex v. Jotham, 3 T. R. 

2 State v. Marston, 6 Kan. 524. 575; Rex v. Stafford, id. 651; Rex v. 

3 Ellis v. Commissioners, 2 Gray Justices, 2 B. & C. 286; Rex v. Jus- 
(Mass.), 370; Bull N. P. 199; Rex v. tices, 2 B. & A. 391 ; Rex v. Whittaker, 
Mayor, 3 B. & C. 283 ; Rex v. Grampond, 9 B. & C. 648 ; Strong's case, 20 Pick. 
6 T. R. 301 ; Rex v. Waterworks, 6 A. (Mass.) 484, 496 ; Clark v. McKenzie, 
& E. 355 ; Rex v. Bishop, 1 T. R. 396 ; 7 Bush (Ky.), 523 ; Thompson v. Ewing, 
Rex v. Bristol Dock Co. , 12 East, 429 ; 1 Brewst. 67 ; Hill v. Goodwin, 56 N. H. 
Rex v. Coleridge, 1 Chit. 588; Rex v. 441. 

Archbishop, 8 id. 219 ; Rex v. Clear, 4 State v. Canvassers, 13 Fla. 51. 



774 

to make a record of any fact, which he is not required by the 
constitution, or the law, to record. 1 

§ 932. If a municipal charter provide that, upon the death or 
amotion of a principal burgess (who is appointed to hold for life), 
it shall be lawful for the mayor and remaining principal burgesses, 
within eight days next following, to elect another, the period of 
eight days having elapsed, after the occurrence of a vacancy, a 
mandamus will be granted to hold an election. 2 If an election of 
aldermen fail, in consequence of a mistake of the mayor and a 
majority of the councillors, as to the proper time for holding it, 
mandamus will lie, to compel the councillors to proceed to the 
election of aldermen. 3 Upon the failure of the notifying officer 
to include a particular office, in the notice of election, as required 
by law, a mandamus lies to compel an amendment of the notice. 4 
No private remedy is available to an individual, to compel a 
municipal officer to cause an election to be held to fill a vacancy. 
If the power exist, and it be the duty of the officer to exercise it, 
he may be compelled to do so, by writ of mandamus, sued out by, 
or on behalf of, the state. 5 

§ 933. No exception lies to a refusal to grant a writ of manda- 
mus to the mayor of a city, to compel him to make a nomination, 
to the board of aldermen, for the office of chief of police, while 
a person is holding that office de facto, and no one but the incum- 
bent is claiming it, and while an information in the nature of a quo 
warranto is pending, to try his title to the office. 6 An office is not 
vacant when there is a de facto incumbent. Such incumbent must 
be ousted, upon an information in the nature of a quo warranto, 
before the court will grant a mandamus to compel proceedings 
for filling the office. And the court will not grant a mandamus 
where it appears that the object sought could, without serious diffi- 
culty, have been otherwise secured. 1 Mandamus will not lie to 
compel a new election, pending a writ of error to reverse a judg- 
ment of ouster, in an information in the nature of a quo warranto, 
unless there shall be delay in the prosecution of the writ of error ; 

'Beli v. Pike, 53 N. H. 473. 5 Demarest v. Wickham, 63 N. Y. 320. 

2 Kex v. Mayor, 8 East, 270. See People v. Regents, 4 Mich. 98. 

3 Regina i). Bradford, 20 L. J. Q. B. 6 Attorney-Generals. Mayor, 128 Mass. 

226. 312. 

4 People v. Carr, 86 N. Y. 512. 7 Harrison v. Simons, 44 Conn. 318. 



775 

for, inasmuch as the mandamus will operate to give effect to the 
judgment of ouster, it will virtually nullify the supersedeas of the 
writ of error. 1 Mandamus will not lie, to compel justices of the 
peace to make a new election of a county treasurer, on the ground 
that one of the justices, who voted at the election, had not duly 
qualified himself, by taking the oath prescribed bylaw. 2 Under a 
statute, providing that, if " five hundred, or more, of the qualified 
electors of the county of Eureka, shall, on or before the first Mon- 
day in July, 1873, petition the board of county commissioners to 
order an election for county officers," * " it shall be the duty of the 
board of county commissioners to call an election, to fill the 
various county offices, on the first Monday in August, A. D. 1873," 
it was held that, before the commissioners could call an election, 
they were required to determine judicially that more than five 
hundred persons had petitioned therefor, and that such petitioners 
were qualified electors ; therefore mandamus would not lie to com- 
pel the commissioners to call an election ; 3 nor would certiorari 
lie in such a case. 4 

§ 934. Mandamus lies, to compel an outgoing officer to deliver, 
to his successor, the seal, books, papers, muniments, records, and 
insignia of the office. 5 But when the party has another specific 
legal remedy for obtaining possession of the books and papers of 
an office, a mandamus will not be granted. 6 

Where the statute declares that, "when any office is vacated, it 
is the duty of the incumbent, on demand made, to deliver all 
books, papers, and other property, appertaining to the office, 
to his qualified successor,'" 7 and prescribes judicial proceedings, 
to compel such delivery, in case of refusal, the court will not, in 
such case, go behind the commission, to enquire into the legality 
of the election, or the eligibility of the new officer. The title to 
the office will be determined, as before, by quo warranto. 8 A 
court constituted by law, for the trial of contested election cases, 
may be compelled, by mandamus, to sign a bill of exceptions to 
decisions of the court. 9 An elector, having taken possession of 

1 Regina v. Lord Mayor, 4 Ir. L. R. 147. Black, 50; Rex v. Wildman, 2 Strange, 

2 Rex v. Justices, 1 Chitty K. B. 709. 789; Borough of Calne, id. 948. 

3 State v. Commissioners, 8 Nev. 309. 6 People v. Stevens, 5 Hill, 616. 

4 Hetzel v. Commissioners, id. 359. 7 Code Ga. 1873, p. 38, s. 172. 

5 People v. Kildaff, 15 111. 492 ; Rex v. * Ross v. Williamson, 44 Ga. 501. 
Buller, 8 East, 389 ; Rex v. Ingram, 1 W. 9 State v. Shelden, 2 Kan. 322. 



776 

property after the assessor had called to assess it, but before the 
assessment slip was delivered, demanded an assessment in his own 
name, which was refused. The court of queen's bench granted 
a mandamus, to compel the insertion of his name in the electors 
roll. 1 Mandamus will lie to compel the approval, or disapproval, 
of an official bond, in order to enable the appointee, upon ap- 
proval of his bond, to bring an action to try the title to the office. 2 
Mandamus will not lie to compel county officers to establish their 
offices at a place alleged to have been designated, as the county 
seat, at an election held pursuant to law, when such place is dif- 
ferent from that declared by the canvassers to have been desig- 
nated by the electors. 3 The writ will not be granted in an election 
case, of which a court of equity has lawfully assumed jurisdiction. 4 
Petitions for writs of mandamus are addressed to the judicial dis- 
cretion of the court ; and they will be denied when, if granted, 
they will be wholly unavailing, as, for example, when the term, 
for which the petitioner claims to have been elected, will have 
expired before any effectual action can be had in the case. 5 

§ 935. When an inferior judicial tribunal declines to hear a 
contested election case, upon what is termed a preliminary objec- 
tion, and that objection is- purely a matter of law, a mandamus 
will go, if the inferior court err on the question of law. 6 While 
officers, invested with judicial power, cannot be compelled to 
decide a case in a specified way, mandamus will lie to compel 
them to decide it in some way. 7 The supervisory tribunal, not 
having jurisdiction to decide the case, may nevertheless have power 
to compel the proper officers to decide it. When, in a statutory 
proceeding, instituted to contest the election of a sheriff, the court 
refuses to try the cause upon its merits, but dismisses it on the 
ground that the contestant had not given the notice required by 
the statute, a mandamus will lie, from the supreme court, com- 
manding the inferior court to reinstate the cause, upon its docket, 
and proceed to try the same, if such inferior court had misunder- 
stood the law applicable to the notice. 8 

1 McCulloch's case, 35 U. C. Q. B. 449. 6 Castello v. Court, 28 Mo. 259 ; citing 

2 People v. Stout, 11 Abb. Pr. 171; Rex v. Justices, 5 B. & A. 667 ; Rex v. 
State v. Ely, 43 Ala. 568. Justices, id. 1113 ; Rex a. Hewer, 3 A. & 

8 Leigh v. State, 69 id. 261. E. 715; Regina v. Recorder, 1 Eng. L. 

4 People v. Warfield, 20 111. 159. & E. R. 291. 

5 Woodbury v. Commissioners, 4 Me. 7 People v. Scannell, 7 Cal. 432. 
304. s Castello v. Court, 28 Mo. 259. 



777 

§ 936. Mandamus is a civil remedy ; the use of the name of the 
state, or king, is- only a matter of form. Under a statute pro- 
viding that no judgment, in any civil action, shall be affected by 
" any defect of form, variance, or other imperfection," in the 
proceedings, " which, by law, might be amended by the court in 
which such judgment was rendered ; but that such defects and 
imperfections shall be supplied and amended, or shall be deemed 
to be supplied or amended, in the supreme court," it has 
been held that proceedings, in mandamus, in the court below, 
may, by amendment, be entitled in the name of the state, 
if necessary, and that, no objection having been made, in the 
court below, on that ground, they will, in the supreme court, 
be considered as having been so amended. 1 Under the Kansas 
code of 1868, it was held that an action of mandamus, when pros- 
ecuted by a private person, must be prosecuted in his own name. 2 
When the county judge and clerk, in pursuance of the statute, call 
in a justice of the peace, who acts with them in the canvass of 
the election returns, the justice is, like the other members of the 
board, amenable to the writ of mandamus. 3 A rule of practice, 
applicable to ordinary cases, and intended to expedite judicial pro- 
ceedings, under which a replication is unnecessary, and the 
plaintiff is to be considered as denying any new matter set up by 
the defendant, is, a fortiori, applicable to proceedings in manda- 
mus. It is not necessary, under such practice, for the plaintiff to 
traverse the defendant's answer, or return, before trial on the 
merits. The proceedings will not be dismissed for want of such 
traverse. 4 

§ 937. In Maryland when the return, to an alternative writ of 
mandamus to admit the applicant to a public office, states, on its 
face, with precision and certainty, facts sufficient, in law, to justify a 
refusal of the peremptory writ, such facts are not traversable, and, 
whether true or false, the return is conclusive and the writ is 
denied ; the only remedy, if the facts alleged in the return be 
untrue, is an action on the case for a false return. The return, to 
be sufficient, must answer the writ with the strict and technical 
precision required by the ancient rules of the common law ; its 
averments must have certainty to every intent, as in cases of 

1 Brower v. O'Brien, 2 Ind. 423. 3 State v. Canvassers, 17 Fla. 9. 

2 State v. Marston, 6 Kan. 524. "Borgstede v: Clark, 5 La. An. 291. 



778 

estoppels, indictments, or returns to writs of habeas corpus ; it 
must set out facts, and not state conclusions only ; if it deny the 
statement of the writ, the traverse must be single, direct, and cer- 
tain ; and if the facts averred may be true consistently with the 
truth of the suggestion of the writ, the return is bad. 1 When a 
mandamus required the inspectors of election to return whether 
the relators did not receive the greatest number of votes, and 
whether they did not declare them duly elected, it was held that 
a return, averring that they were not elected by the greatest num- 
ber of votes, was evasive, and should be quashed on motion. 2 It 
is not a sufficient answer to an alternative writ of mandamus to 
show the respondent's resignation, the acceptance of his resigna- 
tion, and the election, or appointment, of his successor. It is 
necessary also to show the qualification of his successor in office. 3 
A return to an alternative writ of mandamus to admit to an office, 
which stated, as cause for not admitting, that certain electors, at 
the time of the election mentioned in the mandamus, were living, 
and might have been convened, but that they did not attend, nor 
were they convened, or summoned, was held bad, because it did 
not state that these electors were within summons. 4 

§ 938. Where the statute makes it the duty of the county court 
to canvass the returns of an election, no demand is necessary 
before proceeding to compel the performance of the duty by man- 
damus. 5 An alternative writ of mandamus, directed to a board of 
canvassers, is amendable. 6 It is not a contempt of court for a 
returning officer to proceed to a new election, after the service of 
an alternative writ of mandamus to admit a person who was a can- 
didate at a former election, when he acts in pursuance of the 
opinion of counsel. 7 Under a statute requiring contests to be 
commenced within ten days after the election, and providing that 
the governor shall not issue a commission, until the expiration of 
forty days after the election, but, upon the receipt of the certificate 
of the clerk of the district court, showing that the contest has been 
abandoned, or that the right to prosecute it has been lost, by non- 

1 Harwood v. Marshall, 10 Md. 451. 4 Eegina v. Smith, 1 Jebb. & S. 621. 

See also People v. Kilduff, 15 111. 492 ; 5 Lyman v. Martin, 2 Utah, 136. 

People i). Supervisor, 51 id. 191. "State v. Canvassers, 13 Fla. 51. 

2 People v. White, 11 Abb. Pr. 168. 7 Regina v. Hoyte, 1 Jebb. & S. 636. 

3 People v. Supervisor, 100 111. 332. 



779 

compliance with the requirements of the law, shall issue a 
commission to the person, in whose favor the certificate of election 
has been granted, the court will not, by mandamus, aid a contestant 
who has discontinued his contest, after the expiration of the 
period of forty days limited by the statute and the issue of the 
commission by the governor to the contestee. 1 

§ 939. Upon appeal, in the case of an application for a man- 
damus to admit a party to a public office, the appellate court 
reversed the order awarding the writ, on the ground that the 
certificate of the governor, then on file, did not show that the 
applicant had subscribed the oaths of office, and sent the case 
back under a procedendo. Afterwards a certificate, supplying 
this defect, " was filed " in the court below, as stated in the record, 
and thereupon that court ordered the writ to issue. Upon appeal 
from the latter order, it was held that, although the record did 
not set out, in terms, by whom the certificate was filed, yet, being 
in fact filed in the case, and appearing in the record, the fair legal 
intendment was that it was filed by the applicant, and furnished 
the ground on which the court acted, and that, under this pro- 
cedendo, it was not necessary for the applicant to begin, de novo, 
by filing a new petition, or to amend the one originally filed and 
obtain a new rule to show cause, if the original application con- 
tained sufficient allegations, when taken in connection with the 
governor's certificate, to show the court that the oaths of office 
had been legally taken and subscribed. 2 The repeal of the statute 
creating a board of canvassers, pending a proceeding, by manda- 
mus, against such board, terminates the proceeding. 3 

'Borgstede v. Clark, 5 La. An. 291. 3 State v. Canvassers, 13 Fla. 51 ; and 

2 Harwood v. Marshall, 10 Md. 451. cases cited. 



CHAPTER XXXVIII. 

INJUNCTION, CERTIORARI, EQUITY IN GENERAL, COLLATERAL PRO- 
CEEDINGS, INDICTMENT. 

Secs. Secs. 



Injunction. 

(1) To restrain election . . 940 

(2) To restrain canvass . . 941 

(3) To restrain grant of commis- 

sion ..... 942 



(4) To try title to office . . 943 I 5. Indictment. 



(7) To restrain prosecution of 

contest or removal of officer, 946 

2. Certiorari .... 947,948 

3. Equity in general . . . 949 

4. Collateral proceedings . 950-953 



(5) To restrain exercise of official 

functions, pendente lite . 944 

(6) To restrain collection of tax 

voted ..... 945 



(1) Voters .... 954-962 

(2) Officers of election . 963-966 



§ 940. In a case decided by the supreme court of Iowa, in 1874, 
the legality of an election was questioned on the ground that it 
was held in violation of an injunction issued by a judge of a state 
court in vacation. It appears that the injunction was dissolved 
before the election was held, so that the question of the effect of 
the injunction was not presented by the record, or decided by the 
court. The judge delivering the opinion of the court said : " With- 
out undertaking to decide the question, we simply state that we 
should hesitate long before adjudging that any court has the power, 
or jurisdiction, to enjoin an election, to be held by the people, 
pursuant to a public law. If such an injunction would bind the 
officers of an election, upon whom it is served, it would bind also 
any others who might undertake to hold the election, in their places, 
upon their declining to act, and would also doubtless bind- the 
electors, all of whom would necessarily have knowledge of it. 
The jurisdiction of any court, or of the whole judicial department 
of the government, to enjoin the expression of the popular will, at 
a time and in the manner provided by statute, may well be doubted. 
If the election, when held, was not according to statute, or if the 
statute was enacted without any constitutional authority, the courts 
might very well hold the election invalid. But that is quite 
another thing from enjoining the people from peaceably assembling 
and casting their votes for, or against, any proposition submitted 



780 



781 

to them under the color of law." * An injunction will not be granted, 
to restrain officers of election from holding an election, on the 
ground that the law under which they propose to hold it is uncon- 
stitutional and void, at the instance of a party who shows no other 
interest than that of a citizen and elector of the district. 2 

§ 941. Courts of equity generally refuse to restrain officers of 
election from canvassing illegal votes, or issuing certificates to 
persons not legally elected. 3 When the statute requires a board 
of canvassers to proceed to canvass the votes, on a certain day, an 
injunction restraining the board from proceeding with the canvass 
until the further order of the court, if operative, would, in effect, 
abrogate the statute. It is therefore illegal and void. 4 Where 
an election was held, in a city, on the question whether the munic- 
ipality should become incorporated, under the general incorporation 
act for cities and villages, and a writ of injunction was issued out 
of the circuit court, restraining the board of canvassers from can- 
vassing the returns and declaring the result, it was held, by the 
supreme court, that the circuit court had no power to issue the 
writ ; that the writ was void ; that the canvassers were not bound 
to obey it, and could not be punished for disobeying it. 5 The 
fact that the contestant and the special statutory tribunal, con- 
stituted for contested election cases, desist from proceedings, in 
obedience to a void injunction, issued by a court of chancery, at 
the instance of the defendant, does not prevent the special tribunal 
from concluding the case, after the dissolution of the injunction. 6 

§ 942. On an application for an injunction to restrain the governor 
from granting a commission to a judge of the court of common pleas, 
the supreme court of Indiana held that the election, at which the 
judge was chosen, was void, but reversed the judgment of the court 
below allowing the injunction. The court said : " The granting of 
an injunction to restrain the executive is a different thing ; and we 
do not think the principles or practice of the law will justify it, 
unless in some special case that might be made. Here no irrep- 
arable injury calls for the interposition by injunction. Mr. Beal 
would be a de facto judge. The public would not suffer from his 

1 Lamb v. Railroad Co. 39 Iowa, 333. 4 State v. Canvassers, 13Fla. 51; Wille- 

2 Jones .v. Black, 48 Ala. 540. ford v. State, 43 Ark. 62. 

3 Lawrence v. Knight, 1 Brewst. 69. 6 Dickey v. Beed, 78 111. 260. 

6 Pearson v. Wilson, 57 Miss. 848. 



782 

acts. The salary is not large enough to put very great pecuniary 
interests at stake while the proper legal remedy, by information 
in the nature of quo warranto, might be pending. Indeed it is 
not alleged that the governor threatens to commission Mr. Beal." 1 

§ 943. The title to a public office cannot be tried on an applica- 
tion for an injunction, 2 nor on a motion. 3 It is competent for a 
person, who is in the legal and undisputed possession of a munic- 
ipal office, in Scotland, to protect his office against the intrusion 
of a party, who has no title to it, by " suspension and interdict." 
But a bill of suspension and interdict is not a proper proceeding 
for the determination of the merits of contested municipal elec- 
tions. This proceeding cannot be had against a party in posses- 
sion of an office, to test his right thereto, by a party who is not 
in possession ; nor can it apply to a case where neither party is 
in possession, nor to acts performed prior to the election. 4 But 
in Iowa an injunction, restraining a county judge from removing 
the offices and records of the county from one town to another, is 
not in conflict with a writ of mandamus, requiring him and the 
other members of the board of canvassers to canvass the returns 
of an election, on a proposition to remove the county seat to the 
same town, and to recount certain returns which will determine 
the result in favor of such removal. The office of the mandamus 
in such case is to compel ministerial officers to discharge their 
duty, by a canvass of the returns ; while the object of the injunc- 
tion proceeding is to determine the validity of such returns. 5 

§ 944. Courts of equity will not interfere, by injunction, to re- 
strain defendants, who have no right to an office, from assuming 
to exercise its functions, on the ground of damage occasioned to 
the plaintiff, by exclusion therefrom, nor on the ground of fraud 
in the inspectors in counting the votes and awarding the certificate 
of election to the defendants. 6 But pending a quo warranto, in- 
stituted by a claimant against an officer de facto, an attempt, by 
the claimant, to act as a member of a board, of which the incumbent 
of the contested office is a legal member, will be restrained by in- 
junction. 7 

3 Beal v. Kay, 17 Ind. 554. Hulseman v. Kerns, 41 Penn. St. 396 ; 

2 Jones v. Commissioners, 77 N. C. Moulton v. Reid, 54 Ala. 320. 

280 ; Kilpatrick v. Smith, 77 Va. 347 ; 4 Fleming v. Dunlop, 7 CI. & Fin. 43. 

Markle v. Wright, 13 Ind. 548. 5 Dishon v. Smith, 10 Iowa, 212. 

3 Sneed v. Bullock, 77 N. C. 282 ; fi Hartt v. Harvey, 19 How. Pr. 245. 

7 Brady v. Sweetland, 13 Kan. 41. 



783 

§ 945. Although the statute of Indiana, regulating contested elec- 
tions, is not applicable to elections held on the question of voting 
aid to railway companies, the county commissioners have the right 
to go behind the canvass of the votes, and inquire into the truth 
of the return made by the canvassers ; and any individual inter- 
ested may appear before the board and contest the result of the 
election, and, if aggrieved by the decision, may appeal to the 
circuit court ; and, in this way, the validity of the result of such 
election, as to the legality of the votes cast, may be contested. 
It cannot be contested in a suit brought to enjoin the collection 
of a tax levied in pursuance of the votes cast. 1 

But in Iowa a court of equity has jurisdiction to restrain, by 
injunction, the collection of a tax which has been erroneously 
certified, by the clerk, to have been voted, by the electors, the 
proposition for the levy of the tax having, in fact, been defeated. 3 

§ 946. When the statute invests a special tribunal with exclu- 
sive power to determine a contested election, no court can, without 
statutory, or constitutional, authority, interrupt the proceedings of 
such a tribunal, had within the limits of its statutory powers. A 
court of equity has no power to enjoin the prosecution of a case 
of contested election before such a tribunal. An order of the 
chancery court, imprisoning a contestant for prosecuting a case, 
in violation of its injunction, is void, and the prisoner will be 
discharged on habeas corpus. 3 A court of equity has no jurisdic- 
tion of a bill to restrain the removal of a public officer. Under 
the constitution and laws of the United States, the distinction 
between common law and equity, as existing in England, at the 
separation of the two countries, has been maintained, although 
both jurisdictions are vested in the same courts. The jurisdiction 
of a court of equity, unless enlarged by statute, is limited to the 
protection of rights of property. It has no jurisdiction over the 
appointment or removal of public officers. To sustain a bill in 
equity to restrain the removal of a public officer is to invade the 
domain of the courts of common law, or of the executive depart- 
ment of the government. 4 

1 Goddard v. Stockman, 74 Ind. 400. Commissioners, 19 Wall. 655 ; Attorney- 

2 Cattell v. Lowry, 45 Iowa, 478. General v. Clarendon, 17 Ves. 491 ; Tap- 
3 Wimberly's case, 57 Miss. 437. pan v. Gray, 7 Hill, 259 ; Delehanty v. 
* Sawyer's case, 124 U. S. 200; Fenn Warner, 75 111.185; Sheridan v. Cohan, 

v. Holme, 21 How. 481 ; Thompson v. 78 id. 237. 
Bailroad Co.' 6 Wall. 134 ; Heine v. Levee 



784 

§ 947. In Pennsylvania the determination of a contested elec- 
tion, by the court of common pleas, on the merits, is final. A 
certiorari only removes the record to the supreme court ; and, if 
the record be adjudged regular, the effect of the judgment will 
be to confirm the decree of the court of common pleas from its 
date. 1 Under a statute conferring upon the supreme court of a 
state jurisdiction to examine and correct " all and all manner of 
error of the justices, magistrates, and courts, of the common- 
wealth, in the process, proceedings, judgments, and decrees, as 
well in criminal, as in civil, proceedings," that court has juris- 
diction of a contested election case, on certiorari, when it appears 
from the record that no facts are in dispute. 2 A certiorari, 
in a contested election case, suspends the right of the successful 
party to proceed, until the certiorari is disposed of. After certio- 
rari the successful party may be enjoined from proceeding, under 
the decree, until the certiorari is disposed of. A certiorari will, on 
motion, be quashed unless the record shows sufficient ground for 
granting it. 3 In West Virginia certiorari lies from a circuit court, 
or a judge thereof in vacation, to the county court commissioners, 
convened, in special session, to ascertain the result of an elec- 
tion. 4 When an election is contested, before an inferior tribunal, 
without authority of law, and adjudged void, a certiorari lies 
from the superior tribunal, to remove and vacate the proceed- 
ings, in the absence of a statutory provision for an appeal ; and 
the writ may be sued out by the persons who were made defend- 
ants to the proceedings before the inferior tribunal. 5 When a 
rule is asked, in the circuit court, against the board of supervisors, 
in the nature of a writ of certiorari, and also a rule to show cause 
why a mandamus should not be awarded, the former to revise the 
proceedings of the supervisors, and reverse their order setting- 
aside an election, at which the petitioners claim to have been duly 
elected to certain county offices, as shown by the returns certified 
by the officers conducting the election, and to grant certificates of 
election to the petitioners, and no objection is made to the process, 
in the circuit court, it is too late to claim, in the appellate court, 

1 County of Luzerne v. Trimmer, 95 4 Chenowith v. Commissioners, 26 W. 
Penn. St. 97. Va. 230. 

2 Chase v. Miller, 41 id. 403. B Clarke ». Jack, 60 Ala. 271. 

3 Thompson v. Ewing, 1 Brewst. 67. 



785 

that it is not a proceeding by certiorari in due form ; and the rule 
awarded for the mandamus must be regarded as only ancillary 
to the writ of certiorari. 1 

§ 948. If certiorari be a proper remedy, in a case of contested 
election, the court will not sanction such a use of the writ as will 
leave an important public office vacant, pending the adjudication 
of the claims of individuals to the office. 2 It was held, by the 
supreme court of New Jersey, in 1794, that that court, exercising 
the powers of the king's bench, had a right, on certiorari, to ex- 
amine into the proceedings of an election, held under an act of 
assembly, and, in case they were illegal, to declare the election 
void ; and that, when there was evidence of the admission of 
illegal votes, the case was a proper one for the interference of the 
court. 3 

Under a constitutional provision that the supreme court " shall 
always have power to issue writs of injunction, mandamus, quo 
warranto, habeas corpus, and such other remedial writs as may be 
necessary to give it a general supervisory control over all other 
courts in the state," the supreme court has no power to issue a 
writ of certiorari to a board of commissioners of election which 
is not a court in the sense of the constitution. 4 

§ 949. Courts of equity have no inherent power to try contested 
elections, and they have never exercised such power, except in 
cases where it has been conferred by express enactment, or by 
necessary implication. 5 

The mere omission of a particular class of cases, from the oper- 
ation of a general law regulating contested elections, will not 
confer jurisdiction of such cases upon courts of equity. 6 But 
while a court of equity, in Illinois, will not entertain a bill to 
determine who has been legally elected to an office, it may enter- 
tain a bill to determine where a county seat is located, although 
the adjudication may involve the question whether illegal votes 
were cast at the election to determine its location, and may require 

1 Burke v. Supervisors, 4 W. Va. 371. judgment was reversed 8 to 3. I have 

2 State v. Clerk, 1 Dutch. 354. heard the ground of this reversal was 
3 State v. Justices, 1 Coxe (N. J.) 244. the supreme court had no jurisdiction." 

The following endorsement appears on 4 Carson's case, 5 S. C. 117. 

the opinion of the chief -justice and in 5 Dickey v. Reed, 78 111. 261. 

his handwriting: "Jan. 7, 1795. On 6 Moore v. Hoisington, 31 id. 243. 
error, before governor and council, this 

50 



786 

a correction of the canvass of the votes. 1 Courts of equity, in 
that state, have taken jurisdiction of such cases, on the express 
ground that the constitution had provided that county seats should 
not be removed, except upon a vote of a majority in favor of their 
removal, and that the legislature, in providing for such elections, 
failed to provide any means of contesting them ; and in order to 
protect the rights of the majority they have held that the constitu- 
tion, by implication, conferred on courts of equity the power to 
hear and determine such cases. But these cases are excep- 
tional ; and the rule does not extend beyond cases relating to 
the removal of county seats. 2 A bill in chancery was filed by a 
citizen, who was a voter and tax-payer, in behalf of himself and 
all others interested in the question, against the board of super- 
visors, to impeach the election returns, and purge the polls of 
illegal votes cast at an election, held to determine whether the 
county seat should be removed. In the appellate court it was, 
for the first time, objected that the suit could not be maintained 
by a private citizen, but should have been brought by the attorney- 
general, on behalf of the public. But it was held that, although 
it might have been the better practice to require bills to be ex- 
hibited by the attorney-general in such cases, still the long con- 
tinued practice of allowing such suits to be brought by individuals, 
in the state, would not be reversed, where the objection was first 
made in the appellate court. 3 

§ 950. In a suit which concerns the public, the title to an office 
cannot be questioned collaterally, when the officer is in the exer- 
cise of his duties, even though he be a party to the record. 4 The 
title to an office can only be tried in a direct proceeding to which 
the officer is a party. The acts of an officer de facto are valid and 
binding as to the public and as to third persons. 5 Under a con- 
stitution declaring that " no judge of any court * shall, at the 
same time, * have a seat in the senate or house of represent- 
atives of this commonwealth," 6 the question whether a judge, who 

1 People v. Wiant, 48 111. 263 ; Boren 24 Wend. 520 ; Taylor v. Skrine, 2 Const. 
v. Smith, 47 id. 482. R. 696. 

2 Dickey v. Reed, 78 id. 261. 6 Kaufman v. Stone, 25 Ark. 336 ; 

3 Supervisors v. Davis, 63 id. 405. Fowler v. Beebe, 9 Mass. 231 ; State 

4 Creighton v. Piper, 14 Ind. 182 ; v. Brennan, 25 Conn. 282 ; Douglas v. 
People v. Stevens, 5 Hill, 630 ; Green v. Wickwire, 19 id. 491 ; Cornish v. Young, 
Burke, 23 Wend. 490 ; People v. White, 1 Ashm. 153. 

6 Const. Mass. Amend. 8. 



787 

has been elected to, and taken a seat in, the legislature, but at the 
same time continues publicly to exercise his judicial office, is 
disqualified to act as judge, cannot be determined, upon a habeas 
corpus sued out by a person whom he has tried and sentenced to 
imprisonment. In such a case it is sufficient that he was a judge 
de facto. 1 

§ 951. The title of a de facto mayor cannot be questioned, on 
habeas corpus, by a prisoner arrested and held in custody under 
the mayor's writ. 2 The right to the office of clerk of a court can- 
not be determined on a motion to quash a summons issued by the 
incumbent. The proper mode of testing his right to the office is 
by a direct proceeding for that purpose. 3 The records of the 
proceedings of municipal corporations, such as towns and school 
districts, cannot be collaterally attacked in a suit at law. When 
the records show that, at a school district meeting, " it was voted 
that the district build a new school-house, 16 for and 11 against 
it," evidence cannot be received, in a tax case, growing out of the 
action of the district, in connection with the school-house, to prove 
that seven of the sixteen who voted in the affirmative were not 
legal voters of the school district. 4 

§ 952. On the question of the power to assail collaterally the 
validity of an election the supreme court of the United States has 
expressed the following opinion : " Who is to determine whether 
or not the election has been properly held, and a majority of the 
votes of the county cast in favor of the subscription ? Is it to be 
determined by the court, in this collateral way, in every suit upon 
the bond, or coupon attached, or by the board of commissioners, 
as a duty imposed upon it before making the subscription ? The 
court is of the opinion that the question belonged to this board. 
The act makes it the duty of the sheriff to give the notices of the 
election for the day mentioned, and then declares, if a majority of 
the votes given shall be in favor of the subscription, the county 
board shall subscribe the stock. The right of the board to act, in 
execution of the authority, is placed upon the fact that a majority 
of the votes had been cast in favor of the subscription, and to 
have acted without first ascertaining it would have been a clear 
violation of duty ; and the ascertainment of the fact was necessarily 

1 Sheehan's case, 122 Mass. 445. 3 Eaton v. Harris, 42 Ala. 491. 

2 Strahl's case, 16 Iowa, 369. 4 Eddy v. Wilson, 43 Verm. 362. 



788 

left to the inquiry and judgment of the board itself, as no other 
tribunal was provided for the purpose. This board was one, from 
its organization and general duties, fit and competent to be the 
depository of the trust thus confided to it. The persons compos- 
ing it were elected by the county ; and it was already invested 
with the highest functions concerning its general police and fiscal 
interests. We do not say that the decision of the board would be 
conclusive, in a direct proceeding to inquire into the facts, previously 
to the execution of the power, and before the rights and interests 
of third parties had attached ; but, after the authority has been 
executed, the stock subscribed, and the bonds issued, and in the 
hands of innocent holders, it would be too late, even in a direct 
proceeding, to call it in question. Much less can it be called in 
question, to the prejudice of a hona fide holder of the bonds, in 
this collateral way." 1 

§ 953. By an act of the legislature of the state of New York 
the governor was authorized to appoint three tax commissioners 
for the city of New York ; and it was provided that, upon their 
acceptance of the office, the term of the commissioners then in 
office should expire. The new commissioners removed certain 
deputies of the former commissioners. These deputies brought 
suit for their salaries, for a period subsequent to their removal, 
claiming that the act authorizing the governor to appoint commis- 
sioners was unconstitutional, that the former incumbents of the 
office were still de jure commissioners, and that the plaintiffs were 
de jure deputies. They also asked for an injunction to restrain 
the city comptroller from paying to the newly -appointed deputies 
the salary of the office. The court held that the question of title 
to the office, as between the former commissioners and their ap- 
pointees, on the one hand, and the new commissioners and their 
appointees, on the other, could only be determined in an action 
brought by the attorney-general, in the name of the people, upon 
his own information, or upon the complaint of a private party ; 
that it could not be properly determined in an action for salaries 
brought, by the deputies of the former commissioners, against the 

Commissioners v. Aspin wall, 21 How. 1 Wall. 83; Van Hostrup v. Madison 

539 ; Bissell v. City of Jeffersonville, 24 City, id. 291 ; Supervisor t>. Schenk, 5 id. 

id. 287; Morgan v. Miami County, 2 772; Pendleton County v. Amy, 13 id. 

Black, 722 ; Gelpcke v. City of Dubuque, 297; City of Lexington v. Butler, 14 id. 

1 Wall. 175 ; Mercer County v. Hackett, 283. 



789 

comptroller and new deputies ; that the comptroller could not, in 
such an action, be restrained from paying the newly-appointed 
deputies their salaries ; that it could not be said that the new 
commissioners had usurped their offices, or intruded into them, 
without color of right; and that the comptroller would be justified 
in paying their salaries and those of their deputies, until restrained 
in an action properly instituted, in the name of the people, to de- 
termine the title to the office. 1 But if a person, rightfully in pos- 
session of an office to which he is entitled, is ousted therefrom, by 
an intruder, an action for money had and received will lie in his 
favor, against the intruder, to recover the fees, when fixed or cus- 
tomary fees are incident to the office. And the title to the office 
may be determined in such an action. A person who is entitled 
to an office, but has never obtained possession of it, has a property 
in it and, against a mere intruder, who may perform the duties of 
the office for a time, and receive the fees, he may maintain an 
action for money had and received, to recover such fees, and the 
intruder will not be entitled to retain any part thereof as compen- 
sation for his labor. 2 

§ 954. The act of congress, prescribing the punishment of per- 
sons who illegally register, or attempt to register, at a registration 
of voters for an election of representative in congress, and provid- 
ing that a registration, made under the laws of a state, shall be 
deemed to be a registration within the meaning of such act, 3 is not 
in conflict with the constitution of the United States. Its object 
is to secure the observance of a mode prescribed for ascertaining 
and certifying the qualifications of the electors ; it does not add 
to or change their qualifications ; nor does it furnish a test of such 
qualifications ; it is, therefore, not repugnant to the clause of the 
constitution which prescribes the qualifications of electors of rep- 
resentatives. 4 The enactment of this law is authorized by those 

1 Mott v. Connolly, 50 Barb. 516 ; Peo- said office, the term of office of the pres- 

plefl. Cook, 4Seld. 67 ; People v. Clarke, ent commissioners of taxes and assess- 

11 Barb. 337. The statute was in these ments, for said city and county, shall be 

words : " Immediately after the passage terminated." Stat. N. Y. 1867, c. 410, 

of this act the governor shall appoint, s. 1. 

by and with the advice of the senate, 2 Glascock v. Lyons, 20 Ind. 1. 

three commissioners of taxes and assess- 3 16 TJ. S. Stat. 145. 

ments for the city and county of New 4 Const. U. S. art. 1, s. 2. 
York, and, upon their acceptance of the 



790 



clauses of the constitution which provide that congress may, at 
any time, by law, make, or alter, regulations as to the time, place, 
and manner of electing representatives, and shall have power to 
make all laws necessary, or proper, for carrying into execution 
the powers specifically conferred by the constitution. 1 

§ 955. Under a statute imposing a penalty upon " any person, 
or persons, who shall fraudulently, or wrongfully, put, or insert, 
one or more ballots " 3 into the ballot-box, any person who delivers, 
or induces another to deliver, to the judges of election, a fraudu- 
lent ballot, which is, thereupon, inserted in the ballot-box, may be 
indicted and punished, whether the conduct of the judge deposit- 
ing the ballot was, or was not, corrupt. 3 The indictment must 
show with precision where the illegal vote was cast. 4 A statute 
punishing persons who shall "wrongfully put or insert" ballots 
in the box is applicable to the case of a person who hands a 
fraudulent ballot to the ofiicer, to be by him inserted in the box. 5 
In an indictment charging the defendant with voting twice, it is not 
necessary to set forth the names of the persons for whom he voted. 6 
An averment that the defendant voted illegally at an election 
authorized by law implies that the election was held by the proper 
officers. 7 

§ 956. There is a conflict of authority on the question whether 
proof of the defendant's knowledge of his own disqualification is 
essential to a conviction for illegal voting. 8 Under a statute de- 
claring that " any person, who shall vote more than once, at any 
one election, shall be deemed guilty of a felony," 9 the act of voting 
more than once, at the same election, does not constitute a crime, 
unless performed knowingly, and with wrong intent. 1 ° A minor, 
who is otherwise duly qualified, cannot be convicted of illegal vot- 
ing on the ground that he was not of the required age, if he voted 



1 United States v. Quinn, 8 Blatchf . 48. 

2 Gen. Stat. Ky. art. 13, s. 6. 

3 Commonwealth v. Gale, 10 Bush. 488. 

4 State v. Fitzpatrick, 4 E. I. 269. 

5 Commonwealth v. Gale, 10 Bush. 
488 ; United States^. Hendrie, 2 Sawyer, 
479 ; United States v. Johnson, id. 482 ; 
United States v. O'Neill, id. 481. 

,; Wilson ©. State, 42 Ma. 299. 
7 State v. Douglass, 7 Iowa, 413. 

6 State v. Macomber, 7 R. I. 349 : Mc- 



Guire v. State, 7 Humph. 54 ; Common- 
wealth v. Aglar, Thach. Crim. Cas. 412 ; 
Commonwealth v. Wallace, id. 592 ; Peo- 
ple v. Harris, 29 Cal. 578 ; State v. Hart, 
6 Jones (Law), 389 ; State v. Boyett, 10 
Ired. 136 ; State v. Shelley, 15 Iowa, 404 ; 
Gordon v. State, 52 Ala. 541 ; Minor v. 
Happersett, 53 Mo. 58 ; United States 
v. Anthony, 11 Blachf. 200. 

9 Stat. Cal. 1858, p. 165, s. 1. 

10 People v. Harris, 29 Cal. 678. 



791 

under an honest belief that he was of age, induced by information 
received from parents, relatives, or acquaintances, having knowl- 
edge of the time of his birth ; but it is for the jury to determine 
whether he acted honestly, on due inquiry, or recklessly, without 
proper care to ascertain the facts. 1 On an indictment of a female, 
for a violation of the nineteenth section of the act of May 31, 1870, 
inasmuch as ignorance of the state constitution, withholding the 
right to vote from females, cannot excuse, and ignorance of her 
own sex is impossible, it is proper for the court to decline to sub- 
mit to the jury the question whether she intended by voting to 
violate the statute, or any other question, and to direct the jury 
to find a verdict of guilty. 2 Under a statute prescribing punish- 
ment for persons who " shall fraudulently vote, not being qualified," 
knowledge of the disqualifying facts will not warrant conviction, 
in the absence of fraudulent intent. 3 Under a statute declaring 
that " any person, who shall knowingly vote at any election, not 
being at the time a qualified voter, in the county in which he 
so votes, shall be adjudged guilty of a misdemeanor," 4 it must be 
shown that the voter knew a state of facts, at the time of voting, 
which disqualified him. Ignorance of the law is no excuse. 5 

§ 957. Evidence that a party consulted counsel, as to his right to 
vote, and submitted to them the facts of his case, and was advised 
by them that he had the right, is admissible in his favor, on the 
trial of an indictment against him for wilfully voting, knowing him- 
self not to be a qualified voter. 6 Where the defendant, for the 
purpose of rebutting the allegation in the indictment that he voted 
knowingly, wilfully, and corruptly, proposes to prove that, in good 
faith, and with an honest purpose to ascertain the right, he had 
made a true statement of his case to counsellors of the supreme 
court, and had obtained their advice, and believed and acted upon 
it, the proposed evidence is admissible ; but an offer to prove that 
the defendant had stated his case to counsellors of the supreme 

1 Gordon v. State, 52 Ala. 308. See 5 McGuire v. State, 7 Humph. 54. See 

Hamilton?;. People, 57 Barb. (N.Y.) 625. State v. Macomber, 7 R. I. 349; Com- 

2 United States?). Anthony, 11 Blatchf. monwealth v. Aglar, Thach. Crim. Cas. 

200. 412 ; State ©. Hart, 6 Jones (Law), 389 ; 

3 State v. Macomber, 7 R. I. 349 ; State State v. Boyett, 10 Ired. 336. 

*». Porter, 4 Harr. 556 ; State v. McDon- 8 Commonwealth v. Bradford, 9 Met. 

aid, id. 555. (Mass.) 268. 

4 Stat. Tenn. 1841, c. 31, s. 1. 



79$ 

court, and had been advised by them that the right of voting, 
which he, being a minor, had never possessed, had not and could 
not have been taken away by his conviction, and that, upon his 
attainment of the age of twenty-one years, he would be a citizen, 
and have the right to vote, without giving the names of the coun- 
sellors, or alleging that he acted on their advice, is immaterial, 
because it does not even negative the idea that the defendant 
knowingly and unlawfully voted. 1 The authorities differ on the 
question when the act of voting is complete. 2 If the election 
itself be illegal an indictment for illegal voting cannot be main- 
tained, but mere irregularities constitute no defence. 3 

§ 958. Under a statute providing that " any person voting more 
than once, at any election held in this state, or depositing more 
than one ballot for the same office, at such election, or guilty 
of any other kind of illegal or fraudulent voting, shall be deemed 
guilty of a felony," 4 a count charging that the defendant, not 
being of the age of twenty-one years, voted at a general elec- 
tion designated, is sufficient ; but a count charging that the 
defendant is guilty of illegal voting without specifying the grounds 
of the charge, will not support a conviction. 5 In an indictment 
for illegal voting, an averment that " a meeting of the qualified 
voters, of the various wards " of a city, was holden on a certain 
day, for the annual election of municipal officers, is a sufficient 
allegation that the voters met in their respective wards, and 
that a meeting was held on that day in each of the wards ; and 
an averment that, " at ward one in said ' city,' at the election 
aforesaid," &c, is a sufficient allegation that ward one was one 
of the wards at which the voters met. 6 In an indictment for 
illegal voting it is not necessary to aver that candidates for any 
particular office were voted for, or to give the names of the 
persons voted for. 7 Under a statute making " any person who shall 
unlawfully vote, or shall fraudulently offer to vote," guilty of a 
misdemeanor, 8 an averment, in the indictment, that the defendant 
did wilfully and unlawfully give in his vote, is equivalent to an 

1 Hamilton ti. People, 57 Barb. 625. 4 Stat. Ala. 1872-3, p. 25, s. 40. 

2 Steinwehr v. State, 5 Sneed, 856; 5 Gordon v. State, 52 Ala. 308. 

Blackwell v. Thompson, 2 S. & P. (Ala.) 6 Commonwealth v. Desmond, 122 

348. Mass. 12. 

3 State v. Williams, 25 Me. 561 ; State 7 State v. Minnick, 15 Iowa, x 

v. Cohoon, 12 Ind. 178. * Nix. Dig. N. J. 223. 



793 

averment that he did unlawfully vote. In an inclictmeDt for illegal 
voting it is not necessary to charge that the defendant fraudulently 

* 

voted, but an indictment, for illegally offering to vote, must charge 
that the vote was fraudulently offered. An indictment for illegal 
voting must specify the defendant's disqualification. 1 An indict- 
ment charging that the defendant voted, " not having the legal 
qualifications of a voter," without specifying the qualifications 
which he lacked is not sufficient. 2 

§ 959. In an indictment, under a statute of New York, making it a 
misdemeanor for any person to vote who had been previously con- 
victed of an infamous crime, it was held that it was not necessary 
to aver that the defendant voted knowingly, wilfully, and corruptly, 
those words not being contained in the statute ; that it was suffi- 
cient if the indictment followed the statute ; that if the offence 
was well set forth, without these words, they were surplusage, and 
were not to be proved ; that the word " unlawfully " was all that 
was necessary to characterize the offence in the indictment ; that 
the presence of the words " knowingly, wilfully, and corruptly " 
would not prejudice the defendant, and the irregularity would be 
cured by the statute of jeofails; that where the prosecutor offered 
no evidence to show that the act charged was wilful, or corrupt, 
beyond proof of the fact of voting and of the previous conviction 
of the defendant of an infamous crime, no proof was necessary, 
or material, on the part of the defendant, to show the absence of 
wilfulness, or corruption. 3 

§ 960. Upon an indictment for usurpation of office, the supreme 
court of Kentucky has held that the constitutional provision, 
relating to duelling, was intended as a punishment, and is not 
self-executing, except to this extent that persons who cannot, or 
will not, take the oath relating to duelling, are prevented from 

1 State v. Moore, 3 Dutch. 105. ingly vote, or offer to vote, at any gen- 

2 Quinn v. State, 35 Ind. 485. eral, or special, town or charter election. 
? Hamilton v. People, 57 Barb. 625. in this state, shall be adjudged guilty of 

The statutes were in the following a misdemeanor," &c. Rev. Stat. N. Y. 

words: " No person shall be permitted vol. 14, p. 449, s. 13. It is stated, in 

to vote, at any election, who, previous the opinion of the court in this case, 

thereto, shall have been convicted of that the statute does not contain the 

bribery or any other infamous crime." - word " knowingly." The indictment 

Stat. N. Y. 1847, c. 240, s. 15. "Any seems to have been based on the first of 

person, not duly qualified to vote, under the foregoing provisions, 
the laws of this state, who shall know- 



794 

holding office, and that a citizen, who denies that he is guilty of 
a violation of the constitutional provisions relating to duelling, 
and is willing to take the oath of office, may enter upon and dis- 
charge its duties, without subjecting himself to an indictment 
for usurpation of office, until he has been first indicted, tried, and 
convicted of the disqualifying offence ; and that the first of the 
foregoing provisions is, of itself, a complete law, and any one, 
violating its provisions, may be indicted, tried, and convicted, and, 
by the judgment of the court, be deprived of the right to hold any 
office of trust, or profit, without any legislative action, on the sub- 
ject. 1 

§ 961. On the trial of an indictment for fraudulent voting, the 
defendant's statements, made under oath, at the polls, when chal- 
lenged, are not admissible evidence in his favor ; nor is the deci- 
sion of the judges of election in favor of his right to vote any 
defence. 2 While voluntary intoxication is no excuse for crime, 
evidence of intoxication is admissible, on an indictment for voting 
twice at the same election, for the purpose of showing that the 
mental condition of the accused was, at the time, such that he did 
not know that he was committing a crime, coupled with proof that 
he had no purpose to commit the crime, before he became intoxi- 
cated. 3 If a person indicted, under a statute providing that, "if 
any person, knowing himself not to be a qualified voter, shall, 
at any election, wilfully give in a vote for any officers to be then 
chosen, he shall forfeit a sum not exceeding qne hundred dollars 
for each offence," 4 admit, on the trial, that he voted at the election, 
the admission must be regarded as equivalent to an admission 
that he voted wilfully. 5 On the trial of a party indicted for wil- 
fully casting a vote at an election, knowing himself not to be a 
qualified voter, when the only question is whether he had resided 
in the town where he voted, six months next preceding the elec- 
tion, evidence that he had resided in another town, until within 
seven months of the election, does not put upon him the burden 
of showing that he had changed his residence, but the burden of 
proof to sustain the indictment remains on the commonwealth. 6 

1 Commonwealth v. Jones, 10 Bush, 4 Mass. Rev. Stat. 1836, c. 4, s. 6. 

725. 5 Commonwealth v. Bradford, 9 Met. 

2 Morris ®. State, 7 Blackf. 607. (Mass.) 270. 

3 People v. Harris, 29 Cal. 678. 6 lb. 



795 

On the trial of an indictment for fraudulently placing ballot papers 
in a ballot-box, at a municipal election, contrary to the statute, 1 
a sealed packet was produced, under an order of the county judge, 2 
and the counterfoils, and marked register, and voting papers con- 
tained therein, were properly given in evidence, and the face of 
the voting papers inspected. 3 

§ 962. Sections 5512 and 5515 of the revised statutes, prescrib- 
ing the punishment for certain crimes connected with registration 
and elections, are not repugnant to the constitution of the United 
States. 4 Congress has power to punish frauds and crimes, in the 
election of state officers, committed in furtherance of the denial 
of the right of suffrage on account of race, color, or previous con- 
dition of servitude ; and has power to punish all frauds and crimes 
committed in the election of representatives in congress. 5 An 
officer of an election for representative in congress having been 
convicted of a misdemeanor, in the circuit court of the United 
States, under section 5515 of the revised statutes, for a violation 
of the law of Ohio, in not conveying the ballot-box, after it had 
been sealed up and delivered to him for that purpose, to the 
county clerk, and for allowing it to be broken open, it was held, 
by the supreme court of the United States, that congress had 
power to pass the law, under which the conviction was had, and 
that the circuit court had jurisdiction of the offence. 6 

§ 963. Under a statute prescribing a punishment for an inspector, 
or judge, who shall " knowingly receive the vote of any person not 
qualified," the officer is only indictable for a wilful disregard of 
duty. 1 Officers of election in receiving and refusing votes act 
in a judicial capacity, and are not to be held liable, either in crim- 
inal or civil actions, for mere errors in judgment, any more than a 
justice of the peace, juror, or judge. 8 Where a person, not a legal 

1 35 & 36 Vict. c. 33, s. 3. are aimed at a denial of the right of 

2 Obtained under 35 & 36 Vict. c. 33, suffrage on account of race, color, or 
sched. 1, rules 40, 41, pt. 2, s. 4. previous condition of servitude, there 

3 Regina v. Beardsall, 45 L. J. M. C. would seem to be no room for doubt, 
157. under article 1, section 4, of the consti- 

4 United States v. Gale, 109 U. S. 65. tution, as to the applicability of these 

5 Const. U. S. art. 1, s. 4, arts. 14, 15 ; sections to the election of representative 
Rev. Stat. U. S. ss. 2006, 2009. If there in congress in such cases. 

can be doubt as to the applicability of 6 Clarke's case, 100 U. S. 399. 

these sections of the revised statutes to 7 Commonwealth v. Lee, 1 Brewst. 273. 

the election of state officers, in cases 8 State v. McDonald, 4 Harrington, 

where the fraudulent or criminal acts 555. 



796 

voter, takes the prescribed oath relating to his qualifications, the 
officers of election are justified in receiving his vote, unless it can 
be shown that they acted corruptly, and were cognizant of the fact 
that he was not a legal voter. 1 On an indictment of one of several 
judges of election for corruptly refusing a legal vote, the concur- 
rence of the other judges, in the rejection of the vote, will not 
excuse the defendant ; but it will be a circumstance to be con- 
sidered in determining the question of the defendant's corruption. 2 
Where the law invests three judges of election with equal powers, 
a vote, which is challenged and is held by two of the judges to be 
illegal, cannot be lawfully received by the third ; its acceptance 
under such circumstances will be evidence of corruption on the 
part of the judge receiving it. 3 In the election of town council- 
lors of a borough, the recording, by the officer of election, of the 
vote of a burgess who does not vote, or deliver to the officer any" 
voting paper, as required by the statute, is not an offence which 
will subject the officer to a penalty, under the statute, for a refusal, 
or neglect, to conduct or declare the election. 4 Inspectors of 
election, indicted for wilful neglect of duty, cannot avail them- 
selves of the defence that the law did not permit the electors to 
vote for all the officers chosen, and was therefore unconstitutional. 5 
An officer de facto is indictable for malfeasance in office, even 
though there be, at the time, an officer de jure entitled to exercise 
the office. 6 

§ 964. A statute providing that " if any inspector of election 
shall knowingly receive, or sanction the reception of, a vote from 
any person not having all the qualifications of an elector," he shall 
be punished in the manner specified, makes it a crime knowingly 
to receive, or sanction the reception of, the vote, either of a person 
lacking the original qualifications prescribed by the constitution, 
or the laws, or of a person who, although once possessed of such 
qualifications, has become disqualified, or incapacitated, from any 
of the causes fixed by law, as, for example, by reason of being a 
party to a wager on an election. Yiolations of law, with reference 
to those things which confer, and those which destroy, the privi- 

1 State 9. Robb, 17 Ind. 536 {dictum). * Jeffreys V. Higgins, 1 C. L. 351. 

2 State v. Porter, 4 Harrington, 556. 5 Hall v. People, 90 N. Y. 498. 

3 State v. McDonald, id. 555. "Diggs®. State, 49 Ala. 311. 



797 

lege of voting, are equally within the mischiefs to be remedied by 
such legislation. 1 When the statute provides that no " person, 
who shall have made or become, directly or indirectly, interested 
in any bet, or wager, depending on the result of any election, at 
which he shall offer to vote," shall be permitted to vote, and also 
provides that " if any inspector of election shall knowingly receive, 
or sanction the reception of, a vote from any person not having 
all the qualifications of an elector," he shall, on conviction, suffer 
the punishment therein prescribed, the question whether a person, 
offering to vote, has a wager depending on the result of the elec- 
tion, is a mixed question of law and fact, in passing upon which 
the inspectors act in a quasi judicial capacity, and, if they dis- 
charge their duty in good faith, to the best of their ability, they 
are not criminally responsible for an error of judgment, or mistake 
of law. 2 Proof that the defendants to an indictment, under the 
nineteenth section of the act of May 31, 1870, for unlawfully pre- 
venting certain qualified voters from exercising the right of suffrage, 
attacked a number of voters waiting in line for their turn to cast 
their ballots, and expelled them from the room, establishes the 
offence, which congress meant to define and punish in that section, 
and the prevention was accomplished and the offence complete 
upon the expulsion of the voters from the room, although they 
may afterwards have returned and voted. 3 

§ 965. An averment, in an indictment, that certain persons 
were judges of the election, is a sufficient averment that they were 
duly appointed judges. 4 Proof that the officers of election 
were legally chosen and qualified is not essential to a conviction 
for illegal voting ; it is sufficient to show that they were officers 
de facto . 5 When it is provided, in the statute, that "if any 
inspector of election shall knowingly receive, or sanction the 
reception of, a vote from any person not having all the qualifica- 
tions of an elector," he shall, on conviction, be punished as therein 
prescribed, and is also provided, in a separate section, that, if any 
person offering to vote, and duly challenged, shall take the pre- 
scribed oath, his vote shall be received, it is not necessary, in an 

1 Byrne v. State, 12 Wis. 519. 4 State v. Bandies, 7 Humph. 9. 

2 lb. 5 Commonwealth v. Shaw, 7 Mete. 

3 United States V. Souders, 2 Abb. V. (Mass.) 52. 
S. 456. 



798 

indictment against the inspectors, to aver that the person, from 
whom the vote was received, did not take such oath. When the 
exception, or qualification, appears in a separate section of the 
statute, or in a proviso distinct from the clause defining the crime, 
it becomes a matter of defence, which the prosecution is not 
required to anticipate or notice. 1 When the statute provides 
that " any judge, or sheriff, who shall knowingly and unlawfully 
receive the vote of any other than a qualified voter," shall be 
punished, as therein prescribed, an indictment, charging that the 
defendant, as one of the judges of an election, " knowingly 
and unlawfully " 2 received the vote of one not entitled to vote, is 
sufficient, without showing whether the sheriff, or the other judge, 
was in favor of, or opposed to, allowing the vote to be cast. 3 Under 
a statute requiring that the canvassers' statement of the result of 
the election shall have a specified caption, and end with a pre- 
scribed certificate, it is not necessary, in an indictment of a canvasser, 
for wilful neglect of duty, to allege that the statement of the can- 
vassers had a caption, or to recite its contents. 4 An information 
against the inspector of an election, for refusing to receive a vote, 
which does not show the purpose for which the election was held, 
is fatally defective. 5 Under a statutory provision that, "if any 
inspector, judge, or clerk, shall be convicted of any wilful fraud, in 
the discharge of his duties, he shall undergo an imprisonment," 
an indictment charging the offence, in the words of the statute, 
without specifying the acts constituting the fraud, is insufficient. 6 
§ 966. Under a statute providing that, " if any inspector of elec- 
tion shall knowingly receive, or sanction the reception of, a vote 
from any person not having all the qualifications of an elector," 
he shall, on conviction, suffer the punishment therein prescribed, 
a count, in an indictment, charging that the inspectors of an elec- 
tion did knowingly receive, and sanction the reception of, an 
illegal vote, is not objectionable for duplicity. Where a statute 
makes two or more distinct acts, connected with the same 
offence, and subject to the same measure and kind of punishment, 

1 Byrne ®. State, 12 Wis. 519. United States v. Cruickshank, 92 U. S. 

2 Eev. Stat. Ky. 1850, 452. 542. See also Pearee ®. State, 1 Sneed, 

3 Commonwealth ®. Gray, 2 Duv. 373. 937; State®. Moore, 3 Dutch. 105 ; State 

4 Hall ®. People, 90 N. Y. 498. ®. Tweed, id. 111. But see State ®. 

5 Tipton ®. State, 27 Ind. 492. Douglass, 7 Iowa, 413. 

6 Commonwealth ®. Miller, 2 Pars. 480 ; 



799 

indictable separately, and as distinct crimes, when committed by 
different persons, or at different times, they may, when committed 
by the same person, at the same time, be coupled in one count as 
constituting one offence. 1 

] Byrne v. State, 12 Wis. 519 ; Rex v. Stoughton v. State, 2 Ohio St. 562 

Bowen, 1 Den. C. G. 21 ; State v. Fletcher, Commonwealth v. Twitchell, 4 Cush. 74 

18 Mo. 425 ; State v. Morton, 27 Verm. Hinkle v. Commonwealth, 4 Dana, 518 

310 ; Mackey v. State, 3 Ohio St. 363 ; State v. Price, 6 Halst. 203. 



CHAPTER XXXIX. 



PAKLIAMENTAKY CONTESTS. 



Secs. 

1. Power of legislative bodies to 

judge of the elections, returns, 
and qualifications of their mem- 
bers. 

(1) In the United States . . 967 

(2) In England . .. . 968,969 

2. Exercise of the power . . 970 

3. Regulations prescribed by acts 

of congress, of parliament, and 

of state legislatures . . 971-974 

4. Parliamentary rules . . . 975 



Secs. 

5. The committee of elections of 

the house of representatives 

of the United States . 976, 977 

6. The committee of elections of 

the house of commons of the 
United Kingdom . . . 978 

7. Withdrawal of petition, or no- 

tice . . . . . .979 

8. Right of members to vote in 

their own cases . . . 980 



§ 967. The power of legislative bodies, to judge of the elections, 
returns, and qualifications of their own members, is regulated by 
constitutional provisions. It is provided, in the federal constitu- 
tion, that each house of congress shall be the judge of the elections, 
returns, and qualifications of its members. This clause of the 
constitution presents a question of great importance. Are the 
respective houses of congress empowered to judge of the elections, 
returns, and qualifications of their members, at such times, in such 
methods, and under such rules of evidence, and such regulations of 
practice as may be prescribed by acts of congress ? Or is each house 
to prescribe, for itself, the time and mode of judging of the elections, 
returns, and qualifications of its own members, and the rules of evi- 
dence, and regulations of practice, for such adjudications ? It has 
been suggested that the courts have power to judge of the rights of 
parties litigant, but are compelled to exercise that power in the 
manner prescribed by law, subject to such rules of evidence, and 
regulations of practice, as the law may impose, and that the words 
" shall be the judge of the elections, returns, and qualifications of 
its members," are not incapable of an interpretation imposing 
analogous limitations upon the powers of the respective houses of 
congress. But whatever may, or may not, be true, as to the result 
of a merely verbal analysis of the constitution, it is certain that 
the weight of authority is in favor of the doctrine that the con- 



800 



801 

stitution, interpreted according to its spirit, invests each house of 
congress with power to prescribe the time and mode of trial, rules 
of evidence, and regulations of practice, in contested election 
cases, and that no legislative enactment, purporting to cover any 
part of this ground, is of any constitutional validity, as a statute, 
however convenient it may prove to the house practically tolerating 
its execution. 

But while it is true that the preponderance of authority is 
decidedly in favor of the doctrine that the constitution invests 
each house of congress with plenary power, in the premises, it is 
also true that another constitutional grant of power, to the sep- 
arate houses of congress, has practically necessitated certain 
congressional enactments, respecting contested elections, having 
the semblance, if not the reality, of acts of congress. These 
enactments relate to the form of the notice of contest, and of the 
answer thereto, and to the time and mode of serving the notice 
and answer ; to the time place and manner of taking depositions, 
and to the enrollment of representatives elect, by the ex-clerk of 
the preceding house. They are occasioned by that clause of the 
constitution which confers upon each house the power to make its 
own rules. The house of representatives is a body, not of per- 
manent, but only of periodical, duration, and, while invested with 
power to make its own rules, has no power to make rules for any 
other house, has no power to make any rules which shall bind its 
successor, after the termination of its own existence. But it is a 
very remarkable fact, in the parliamentary history of the United 
States, that since the establishment of our government the house of 
representatives has been wholly without organization or rules, and 
therefore practically without existence, from the fourth of March 
to the first Monday in December, in every alternate year, except 
during the administration of president Johnson. It was there- 
fore impossible for the house of representatives to establish its 
own rules of evidence and practice, in contested election cases, 
until long after most of the steps in the contest had been necessarily 
taken. But it was found that parties to contests were entitled to 
some chart for their course, and this convenient device of a con- 
gressional enactment, which is not a valid law, but only a pro- 
visional rule, subject to acceptance, modification, or rejection, by 
the house, when organized, has been adopted, as a notification to 
51 



802 

parties of the steps which 'will probably be accepted, as satisfac- 
tory, by the house. And while the house habitually modifies and 
relaxes the rules prescribed in these statutes, it never enforces for- 
feitures for laches, neglects, or omissions, against parties who 
proceed in substantial conformity with their requirements. 1 

§ 968. Until the enactment of the statute of 1868, investing the 
courts with power to try cases of controverted elections to the 
house of commons, the right of the house to determine all matters 
relating to the election of its own members had been regularly 
claimed and exercised by the house, since the reign of queen Eliz- 
abeth, and probably in earlier times, although such matters had 
been ordinarily determined in chancery. 2 Its exclusive right to 
determine the legality of the returns and of the conduct of returning 
officers in making them was recognized by the court of exchequer 
chamber, in 1674, 3 by the house of lords, in 1689, 4 and also by 
the courts, in the cases of Onslow, in 1680, 5 and Prideaux v. 
Morris, in 1702. 6 

§ 969. But the supremacy of parliament relieves the house of 
commons of those embarrassments, which would be experienced 
by the senate and house of representatives of the United States, 
in an attempt to delegate, by acts of congress, or by orders of the 
respective houses, any part of the power to judge of the elections, 
returns, and qualifications of their own members conferred upon 
them by the constitution of the United States. Under the con- 
stitution of the United States, in its present form, it is not compe- 
tent for either house of congress to delegate to any other tribunal 
any part of its power to render final judgment on questions 
affecting the elections, returns, and qualifications of its members. 
Nor is such a delegation of power permitted by those state constitu- 
tions which are in this particular substantially the same as that of 

1 In the debate in the case of Easton v. nature of the case, to determine con- 
Scott, C. & H. 286, it was contended tested elections of delegates, 
that delegates were mere agents of the 2 May Pari. Pr. 56 ; Hallam, Const, 
territories permitted, by courtesy, to Hist. c. 5, p. 269. 

sit and speak in the house ; and that, 3 Barnardiston v. Soame, 6 Howell, 

inasmuch as the delegate was not a 1092 ; 2 Lev. 114. 

member of the house, the constitution 4 Id. 1119. 

did not empower the house to judge of 5 2 Vent. 37; 3 Lev. 39. 

his election, qualifications, or return. 6 2 Salk. 502 ; Lutw. 82 ; 7 Mod. 13 ; 

On the other hand it was contended that May Pari. Pr. 71. 
the house must be authorized, by the 



803 

the United States. But the act of 1868 has not wholly divested 
the house of commons of its jurisdiction of cases of contested 
elections. Inasmuch as that act declares that " no election or 
return to parliament shall be questioned, except in accordance 
with the provisions of this act," 1 doubts were at first entertained 
whether this provision would not supersede the proper jurisdic- 
tion of the house, in determining questions affecting the seats of 
its members, which did not arise out of controverted elections. 
But an election or return is questioned when it is controverted 
by parties interested, not when it is adjudged by the house itself. 
When controverted elections were tried by committees of the house 
the house never interfered, during the continuance of the jurisdic- 
tion of the committees, but, after the expiration of the time limited 
for receiving the petitions, it always held itself legally bound to 
determine all questions affecting the seats of its members. Such 
has been the practice of the house since the jurisdiction of con- 
tested elections was transferred to the courts. Notwithstanding 
the act of 1868 a petition relating to an election, but not question- 
ing the return of the sitting member, may be presented to the 
house. 2 

§ 970. Before the passage of the Grenville act, in 1870, contro- 
verted elections to the house of commons were tried and deter- 
mined by the whole house, often as mere party questions, 3 as 
contested elections to the house of representatives of the United 
States are now often tried and determined. In order to prevent such 
a perversion of justice, the house consented to submit the exercise 
of its privilege to a tribunal constituted by law ; which, although 
composed of its own members, should be appointed so as to secure 
impartiality, and the administration of justice, according to the 
laws of the land, and under the sanction of oaths. By the last of 
the statutes 4 enacted in the line of the Grenville act, it was provided 
that thirty-three names should be selected by ballot from those of 
members present at the time, and that each of the parties to the 
contest should be entitled to strike off eleven names, and thus 
reduce the number of the committee to eleven. Whichever party 
attended, on the day appointed for a ballot, in the greatest force, 

>S. 50. 3 May Pari. Pr. 663. 

2 194 Hans. Deb. 3d ser. 1185 ; May 4 1 Geo. 4, c. 22. 

Pari. Pr. 672. 



804 

was likely to have a preponderance of the committee. Partiality 
and incompetence were very generally complained of in the con- 
stitution of committees appointed in this manner. In 1839, an act 
was passed establishing a new system, which, with slight modifica- 
tions, 1 was maintained until 1868, when jurisdiction of cases of 
controverted elections to the house of commons was vested, by 
statute, 2 in the courts of common pleas 3 of England and Ireland, 
and the court of session of Scotland. Petitions complaining of 
undue elections, or returns, are presented to those courts within 
twenty-one days after the returns are made, and are tried by a 
judge of one of those courts, within the county or borough con- 
cerned. The house has no cognizance of these proceedings, until 
their termination, when the judge certifies his decision, in writing, 
to the speaker, which is final to all intents and purposes. He is also 
to report whether any corrupt practices have been committed, with 
the knowledge and consent of any candidate ; the names of any 
persons proved guilty of corrupt practices ; and whether corrupt 
practices have extensively prevailed at the election. He may also 
make a special report as to other matters which, in his judgment, 
ought to be submitted to the house. Provision is also made for 
the trial of a special case, when required by the court itself, which 
is to certify its determination to the speaker. 

The judge is also to report the withdrawal of an election petition 
to the speaker, with his opinion whether the withdrawal was the 
result of any corrupt arrangement. All such certificates and re- 
ports are immediately communicated to the house, by the speaker, 
and are treated like the reports of election committees under the 
former system. They are entered in the journals ; and orders are 
made for carrying the determinations of the judges into execution. 
A report that corrupt practices have extensively prevailed is equiv- 
alent to a like report from a committee of elections, for all the pur- 
poses of the statute relating to further inquiry into such corrupt 
practices. 4 

1 11 & 12 Vict. c. 98. ing to the merits of their respective 

2 15 & 16 Vict. c. 57. causes the principal dependence of both 

3 Now the Common Pleas Division of parties is their private interest among us ; 
the High Court of Justice. and it is scandalously notorious that we 

4 May Pari. Pr. 669. Mr. Grenville in are earnestly canvassed to attend in favor 
proposing the measure, which has since of the opposite sides, as if we were 
borne his name, said: " Instead of trust- wholly self-elective, and not bound to 



805 

§ 971. The house of representatives of the United States may 
exercise its power to judge of the election, return, and qualifica- 
tions of a member, on a notice of contest presented by a rival 
claimant of the seat, or on the suggestion of a member of the house, 
or on a petition or protest of a citizen. 1 The ineligibility of the 
contestant or petitioner will not deprive him of the right to prose- 
cute the contest as a citizen. 2 At a general election, in which 
forty-four representatives were to be elected, in Boston, on one 
ballot, Jones, the representative whose seat was contested, was 
elected, with forty -two others, the two next highest, Hinks and 
Cornell, having the same number of votes, so that there was no 
choice of the forty-fourth member. At a subsequent election, to 
fill the vacancy, Conley was chosen. In a petition by Hinks and 
Cornell, against Jones and Conley, it was claimed that Jones was 
ineligible, so that both petitioners were elected at the general elec- 
tion, and Conley's subsequent election was void. It was held 
that Jones, being ineligible, could not introduce evidence of illegal 
proceedings, in certain wards, at the general election, rendering 
the election in those wards void, and thereby so changing the 
result as to make persons other than the petitioners the next 
highest candidates, after the forty-two returned representatives. 
The ground on which this evidence was excluded was that it could 
not affect Jones' right. 3 A different practice has obtained in con- 
act by the principles of justice, but by From an order of a divisional court, 
trie discretionary impulse of our own in- upon an interlocutory matter arising in 
clinations ; nay, it is well known that, in an election petition, an appeal lies to the 
every contested election, many members court of appeal. Harmon v. Park, 44 L. 
of this house, who are ultimately to T. N. S. 81. 

judge in a kind of judicial capacity be- J Swanwick's case, C. & H. 112 ; Var- 

tween the competitors, enlist themselves num's case, id. ; Hunt v. Sheldon, 2 
as parties in the contention, and take Bart. 703 : Dean v. Field, 1 Ells. 190 : 
upon themselves the partial management New Jersey cases, C. & H. 38 : Tennes- 
of the very business upon which they see cases, Smith, 3 ; Williams' case, C. 
should determine with the strictest im- S. & J. 19 ; Pitt's case, id. ; Keeder •». 
partiality." May Pari. Pr. 663 : 1 Cav. Whitfield, 1 Bart. 189. 
Deb. 476, 505. 2 Sypher v. St. Martin, 2 Bart. 700 ; 

The power to change the place of trial Hunt ■». Sheldon, id. 702 ; Newsham 
of an election petition, under the parlia- v. Ryan, id. 724; Wallace v. Simp- 
mentary elections act of 1868, cannot be son, id. 731 ; Jenkins v. Shaw, L. & R. 
exercised by an election judge, but only 266. 

by the court. 31 & 32 Vict. c. 125 ; 3 Hinks v. Jones, L. & R. 26, 

Collins v. Price, 5 L. R. C. P. Div. 544. 



806 

gress. Ineligible candidates have often been permitted to question 
the election of representatives. 1 

§ 972. The jurisdiction of the house of representatives, in con- 
tested election cases, does not depeni on the presence, or absence, 
of any of the requisites prescribed by the statute for the notice of 
contest. No statutory provision can impair, or enlarge, the juris- 
diction of the house in such cases. In this regard the house is 
above all statute law. It stands upon the constitution itself. 
No act of congress can add to, subtract from, or modify that 
jurisdiction. From the foundation of the government it has exer- 
cised the jurisdiction under the federal constitution. It exercised 
the jurisdiction on the petition of a claimant of the contested 
seat, or of citizens not claimants, long before any statute providing 
for a notice of contest was enacted. Each house of represent- 
atives, during its entire term, has an absolute and indefeasible 
right to judge of the elections, returns, and qualifications of its 
members, not only of those who occupy contested seats, but of all 
its members, without exception. If, at any time during its term, 
any representative, or citizen, whether a claimant of a seat, or not, 
shall notify the house, by petition, or otherwise, of a defect in the 
title of any representative to his seat, the house will have juris- 
diction to adjudicate the case, if not already adjudicated, without 
restriction or limitation. 

It has been asserted, in contested cases, that the house has no 
jurisdiction to judge of the elections, returns, and qualifications 
of its members, except upon points specified in the notice of con- 
test, as courts of law have no jurisdiction of cases beyond the 
points specified in the declaration or complaint. But if this prop- 
osition, applied to ordinary courts of law, were accurate, it would 
nevertheless afford no ground for the limitation of this jurisdiction 
of the house ; for there is no analogy between the two cases. 
When the jurisdiction of a court of law is subjected, by the con- 
stitution, to legislative control, to be conferred, enlarged, restricted, 
conditioned, or withdrawn, by statute, the legislature may, of 
course, by statutory provision, limit the jurisdiction of the court 
to the precise facts presented in the declaration, or complaint, 
may provide that no amendment of the pleading shall ever be 
made, before, or after, verdict, and that no facts shall be con- 

1 Morey v. McCranie, 2 Bart. 719. 



807 

sidered by the court, or jury, except such as are technically alleged 
in the original declaration, or complaint. And such a statute 
would be of binding force. No waiver by parties would affect it. 
But there is no analogy between the jurisdiction of a court, in 
such a case, and that of the house, in cases of contested elections. 
The difference between a tribunal, whose jurisdiction is subject to 
statutory control, and a tribunal, whose jurisdiction is exempt 
from such control, makes the analogy impossible. If the legis- 
lature may, in any case, provide that the jurisdiction of a judicial 
tribunal shall be limited and determined by the pleadings, it may 
not provide that the jurisdiction of the house of representatives, 
in contested election cases, shall be limited, or determined, by the 
form of the notice of contest. 

§ 973. There is a certain jurisdiction vested in one of the courts 
of the United States, which presents a close analogy to the juris- 
diction exercised by the house, in contested election cases. It is 
the original jurisdiction of the supreme court, in case's affecting 
ambassadors, other public ministers and consuls, and those in 
which a state is a party. This jurisdiction, like that of the house 
in contested election cases, is conferred by the constitution itself. 
While the jurisdiction of the supreme court, in other cases, is sub- 
ject to such exceptions and regulations as congress may make, in 
these cases it is absolutely exempt from enlargement or restriction, 
by act of congress, as is the jurisdiction of the house of represent- 
atives, in cases of contested elections. The jurisdiction of the 
tribunal, when the case arises, is coextensive with the case itself. 
An attempt, by the legislature, to compress the jurisdiction of either 
tribunal within the compass of the allegations, in the pleadings, 
would be unconstitutional and void. If congress had attempted 
to provide, by the act of 1851, that, in a contested election case, 
the house, instead of having jurisdiction of the whole case, as it 
existed in fact, should only have jurisdiction of that part of the 
case which should be set forth in the original notice of contest, 
the attempt would have been unconstitutional and void. But con- 
gress has made no such attempt. In the first place, the act of 
1851 is not, and was not intended to be, a statute of full force and 
binding obligation. In the next place, if it were a statute, nothing 
could be found in it which expressly, or by implication, restricts 
the power of the house, in its discretion, to allow amendments, to 



808 

conform pleadings to proofs, to admit waivers by parties, in proper 
cases, or to disregard technicalities of practice. 

§ 974. No statute can tie the house down to any rules of pro- 
cedure, in cases of contested elections. The provisions of the 
statute applicable to such cases are directory, constituting only 
convenient rules of practice ; and the house is at liberty, in its 
discretion, to adopt any other rules which the ends of justice 
may seem to require. 1 The house of representatives of the 
United States, as the judge of the elections and returns of its 
members, is invested, by the constitution, with all the powers of 
courts of law and equity. 2 The act of February 19, 1851, is wholly 
powerless, under the constitution, to restrict the house in its in- 
quiries into the elections, returns, and qualifications of its members, 
but furnishes wholesome regulations for taking testimony, to be 
adopted by the house. 3 Testimony may be taken, in contested 
election cases pending in the house of representatives of the 
United States, in accordance with the statutory provisions there- 
for, or in analogous modes, or by summoning witnesses before the 
committee, or in such other manner as the house may direct. 4 

§ 975. In the British parliament two kinds of rules, or orders, 
for the regulation of the proceedings, are in use, in addition to 
those established by usage and custom, namely, standing and 
sessional orders. The former endure from one parliament to 
another, and are of equal force in all. The latter are renewed at 
the commencement of each session, and otherwise have no bind- 
ing force beyond the session for which they are made. An order 
becomes a standing order by simply being declared to be so, either 
at the time when it is originally made or afterwards. A standing 
order, until it is vacated or rescinded, has the same authority upon 
succeeding houses as a statute. But in the congress of the United 
States, and the legislatures of most, if not all, of the states, the 
rules and orders, made by one house, are not binding on a suc- 
ceeding house until adopted by the latter. 5 

^isbee v. Finley, 2 Ells. 172. cases from the first to the sixth congress 

2 McKenzie v. Braxton, Smith, 19. inclusive were destroyed with the capitol 

3 Brooks v. Davis, 1 Bart. 244; Cong. in 1814. 1 CI. & H. 38. 

Globe, 1858, pp. 726, 728, 734 ; William- , 5 C. S. & J. 134, note ; Churchill's 

son -». Sickles, 1 Bart. 288. case, id. 146. 

4 Holmes v. Wilson, 1 Ells. 322. The On the 28th of February, 1811, the 
original records of contested election following resolution was adopted by the 



809 

§ 976. The committee of elections of the house of representa- 
tives of the United States was established under the fifth section 
of the first article of the constitution, in which it is declared that : 
" Each house shall be the judge of the elections, returns, and qual- 
ifications of its own members." The first standing committee 
appointed by the house was the committee of elections, which was 
chosen, by ballot, on the 13th of April, 1789. On the 17th of 
April, 1789, the house adopted a rule providing that the speaker 
should appoint all committees, except such as should consist of 
more than three members ; that such should be chosen by ballot. 
On the 13th of November, 1789, and again on the 13th of Novem- 
ber, 1794, the following rule was adopted : " It shall be the duty 
of the committee of elections to examine and report upon the 



house of representatives of Massachu- 
setts : 

" Resolved, That in all cases of con- 
troverted elections, in the house of rep- 
resentatives, the following rules shall be 
observed : 

' ' 1. No petition against the election of 
any member shall be received, by the 
house of representatives, after the first 
session of any general court. 

"2. No petition, against the election 
of any member, shall be sustained, or 
committed, in the house, unless, at the 
time of presenting the same to the house, 
the said petition be accompanied by evi- 
dence that a copy of the same petition 
has been given to some one of the select- 
men of the town, whose elective fran- 
chise is affected thereby, and the person 
or persons elected, or left at their several 
last and usual places of abode, ten days 
at least before the petition, shall be pre- 
sented to the house. 

"3. All questions on elections shall 
have a priority, in the house, to all other 
questions, and may be at any time called 
up by any member of the house. 

"4. The facts stated by the commit- 
tee on elections, in their reports to the 
house, shall be considered as the only 
basis upon which the determination of 
this house, on controverted elections, 
shall rest, and all extraneous matter, not 
included in such report, shall be ex- 
cluded." 1 C. S. &J. 116. 

On the 29th of May, 1811, the house of 
representatives of Massachusetts adopt- 
ed the following order : 



' ' Ordered, That the rules and orders 
of the last house of representatives be 
adopted, for the present, by this house, 
until new ones shall be agreed on by the 
house." C. S. & J. 134. 

On the twenty-second of February, 
1812, the house of representatives of 
Massachusetts adopted the following 
orders : 

"1. Ordered, That in future all peti- 
tions, against any member, or members, 
returned to the house of representatives, 
shall be presented, read, and committed, 
within the first four days of the first 
session of the general court. 

"2. Ordered, That the members, who 
are appointed on committees of contro- 
verted elections, shall not be put on any 
other committees, until they shall have 
made up their report on such elections. 

"3. Ordered, That all petitioners, or 
their agents, against any such member, or 
members, shall be ready, with their evi- 
dence, before said committee, on or be- 
fore the tenth day of the first session of 
the general court. And the sitting mem- 
bers, whose election shall be contro- 
verted, shall also be ready, with their 
evidence, within the first twelve days of 
said session, unless in such case as the 
house or committee shall find good and 
sufficient reason to order otherwise ; and, 
in all cases where it shall not be other- 
wise ordered, said committee shall sit, 
hear, and determine, in the recess of said 
court, and report thereon within the 
first three days of the second session of 
the general court." C. S. & J. 134. 



810 

certificates of election, or other credentials, of the members 
returned to serve in this house, and to take into their considera- 
tion all such petitions and other matters touching elections and 
returns as shall, or may, be referred to them, by the house." On 
the 13th of January, 1790, the following rule was adopted : " All 
committees shall be appointed by the speaker, unless otherwise 
specially directed by the house, in which case they shall be 
appointed by ballot ; and if, upon such ballot, the number required 
shall not be elected by a majority of the votes given, the house 
shall proceed to a second ballot, in which a plurality of votes shall 
prevail ; and, in case a greater number than is required to com- 
pose or complete a committee shall have an equal number of votes, 
the house shall proceed to a further ballot, or ballots." Many 
cases of contested elections, in the house of representatives, have 
been considered in committee of the whole. 1 In the determina- 
tion of a contested election case a committee of the legislature 
exercises the functions of a judicial tribunal. 3 

§ 977. In the multitude of cases considered by the committee 
of elections, since its first organization, with a few unimportant 
exceptions in which the point seems to have escaped notice, the 
range of its inquiries has been limited to the execution of the 
power conferred by the fifth section of the first article of the con- 
stitution. The " qualifications " therein mentioned are evidently 
the constitutional qualifications of representatives, to wit, that 
they shall have attained the age of twenty -five years, shall have 
been seven years citizens of the United States, and shall be in- 
habitants of the states in which they shall be chosen. The prac- 
tice of the house has been so uniform, and seems so entirely in 
harmony with the language of the constitution, that it is impossi- 
ble not to regard the jurisdictional question as a bar to the con- 
sideration of any qualifications other than those above specified, 
in the absence of express instructions on the subject by the 
house. 3 

1 Jackson v. Wayne, C. & H. 48 ; Lat- 2 Melvin's case, 68 Penn. St. 333. 

imer v. Patton, id. 72 ; Van Rensselaer 3 Maxwell v. Cannon, Smith, 182. 

v. Van Allen, id. 74 ; White's case, id. The sometimes entertained sentiment 

86 ; Rutherford v. Morgan, id. 119 ; Mc- on the subject of contested elections, was 

Farland v. Purviance, id. 131 ; Lewis' aptly expressed by the representative, 

case, id. 128 ; Van Ness' case, id. 124; who, being of the party then in the ma- 

Hoge's case, id. 136 ; Spaulding v. Mead, jority, declined to make a personal 

id. 158. examination of a pending case, on the 



811 

§ 978. Upon an application to enforce the speaker's certificate 
to recover costs, incurred before a select committee of the house 
of commons, on an election petition, as directed by law, the court 
will inquire whether the committee was appointed in the mode 
prescribed by the statutes, and when the committee is appointed 
under circumstances which do not warrant an appointment, or in 
a manner inconsistent with essential requirements of the statutes, 
there is no court at all, and the whole proceeding takes place 
coram non judice. 1 By the act of 1828, relating to controverted 
elections and returns of members of parliament, it is provided that 
" if, within one hour after the time fixed, in the manner herein- 
after directed, for calling in the respective parties, their counsel, 
or agents, for the purpose of proceeding to the appointment of a 
select committee, the petitioner, or petitioners, or some one or 
more of them, who shall have signed any such petition, shall not 
appear, by himself or themselves, or by his or their counsel, .or 
agents, the order for taking such petition into consideration shall 
thereupon be discharged, and such petition shall not be any fur- 
ther proceeded upon." 2 Where the petitioner did not appear at 
the time appointed, or within one hour thereafter, but a select 
committee was nevertheless appointed, and, having proceeded to 
the adjudication of the case, declared that the petition was frivolous 
and vexatious, it was held, by the court of king's bench, that the 
appointment of the committee was irregular, and that the petition 
should hav^ been discharged. 3 It was provided by act of parlia- 
ment as follows : " Whenever a petition, complaining of an undue 
election or return of a member or members to serve in parlia- 
ment, * shall be presented to the house of commons within such 
time as shall be, from time to time, limited by the house, a day and 
hour shall be appointed, by the said house, for taking the same 
into consideration, and notice thereof in writing shall be forthwith 
given, by the speaker, to all parties so petitioning, and to the sit- 
ting members, and to any parties who may have petitioned to be 
permitted to defend any such election or return, and where no 

ground that, whereas he could, without J Ransom v. Dundas, 2 Hodge, 155. 

serious compunction of conscience, fol- 2 9 Geo. 4, c. 22, s. 3. 

low the committee and his party, if 3 Bruyeres v. Halcomb, 1 Har. & Woll. 

ignorant of the case, the result of a per- 410. 

sonal investigation might be to force him 

to antagonize both. 



812 

return has been made, or the special matter of the return, or the 
conduct of any returning officer is complained of, to the returning 
officer or officers, accompanied with an order to the parties to 
attend the house, at the time appointed, by themselves, their 
counsel, or agent," 1 and that " the house shall determine, from the 
nature of the case, whether the returning officer, or officers, his 
or their counsel, or agents, shall, together with such petitioners, 
be entitled to strike off from the list of members drawn by lot." 2 
It was held by the court of common pleas in a case where a peti- 
tion was presented against the return of two members, which 
complained incidentally of misconduct and partiality in the return- 
ing officers, that those officers were not called upon, as original 
parties to the petition, to appear before the house ; and that, even 
if they were held to be included within the petition, they had no 
power, under the statute, to interfere in striking the committee. 3 
When there are special reports, by the judges, of bribery, riots, 
intimidation, undue influence, the conduct of returning officers, 
the alteration of the poll, the absence, misconduct, or perjury of 
witnesses, or other exceptional circumstances, the house takes such 
measures as are required by law, or usage, or appear suitable to 
the occasion. 4 

§ 979. The court will not actively sanction the withdrawal of 
charges of corruption, in a case of contested election. 5 In the 
affidavits used upon an application, under the Parliamentary Elec- 
tions Act of 1868, 6 for leave to withdraw a petition against the 
return of a member, it is not enough for the petitioner and respond- 
ent to swear that, " to the best of their knowledge, information, and 
belief, the withdrawal of, or application to withdraw, the petition 
is not the result of any corrupt arrangement, or in consideration 
of the withdrawal of, or application to withdraw, any other peti- 
tion. They must make a positive affidavit that they have not been 
parties to any corrupt arrangement, and deny, to the best of their 
knowledge, information, and belief, that any such arrangement has 
been made, by their agents ; and the existence of any such arrange- 
ment must also be denied by the agents themselves." 7 Pending 

1 9 Geo. 4, c. 22, s. 2. 5 Buxton v. Garfit, 44 L. T. N. S. 287. 

2 Id. s. 36. 6 31 & 32 Vict. c. 125, s. 36. 

3 Kansom v. Dundas, 2 Hodge, 155. 7 Johnson v. Eankin, 5 L. E. C. P. Div. 

4 May Pari. Pr. 673. 553. 



813 

a petition against the return of a member of parliament, contain- 
ing charges against him for bribery, corruption, and other illegal 
practices, and praying that the election might be declared void, 
the petitioner agreed to abstain from further proceedings, on the 
receipt of a pecuniary consideration, the sitting member consent- 
ing that his election should be declared void. The agreement was 
held to be illegal. 1 Laches of contestants in the prosecution of 
their cases will be held to amount to an abandonment of the same. 2 
§ 980. The question whether, in a body which has the power to 
judge of the elections, returns, and qualifications of its own mem- 
bers, individual members can lawfully vote in cases involving the 
legality of their own elections, returns, or qualifications, is to be 
determined by the constitution, or law, under which the body is 
organized. In the absence of special reasons of public interest 
and great cogency, it is obvious that an officer, whose title is con- 
tested, ought not to be permitted to act as a judge in his own case. 
Judges have, in dicta, gone so far as to deny the validity of 
statutes authorizing parties to act as judges in their own cases. 
In Day v. Savadge, 3 the judge said, " Even an act of parliament, 
made against natural equity, as to make a man judge in his own 
case, is void in itself ; for jura naturae, sunt immutahilia, and they 
are leges legiim." In City of London v. Wood, 4 Chief -Justice Holt 
said : "And what my Lord Coke says, in Dr. Bonham's case, in his 
8 Co., is far from any extravagancy, for it is a very reasonable 
and true saying, that if an act of parliament should ordain that 
the same person should be party and judge, or, which is the same 
thing, judge in his own cause, it would be a void act of parliament ; 
for it is impossible that one should be judge and party, for the 
judge is to determine between party and party, or between the 
government and the party ; and an act of parliament can do no 
wrong, though it may do several things that look pretty odd." In 
Rice v. Foster, 5 Chief -Justice Booth said : "An act, such as that 
mentioned in the agreement, to make a man a judge in his own 
cause, would not be valid ; because it never was the intention of 
the constitution to vest such power in the legislature which violates 
the plainest principles of natural justice." In Calder v. Bull, 6 
Justice Chase said : "A law that makes a man a judge in his own 

1 Coppock v. Bower, 4 M. & W. 361. 4 12 Mod. 687. 

2 Bishop's case, C. S. & J. 522 ; Shat- 5 4 Harr. 479. 
tuck's case, id. 526 ; Smith's case, id. 34. 6 3 Dall. 386. 

3 Hob. 87. 



814 



cause, or a law that takes property from A. and gives it to B., it 
is against all reason and justice for a people to entrust a legisla- 
ture with such powers." In Commonwealth v. McClosky, 1 the 
justice who delivered the opinion of the court, said : " It is against 
reason and justice and the fruitful source of faction, corruption, 
and abuse that a party interested should judge his own case." 



1 2 Kawle, 369. 

Members of the house of representa- 
tives of Massachusetts have no right to 
vote on the question of the validity of 
their own election. Parsons' case, G. S. 
& J. 97. 

Members of a legislative body, or 
municipal board, are disqualified to vote 
therein on propositions in which they 
have a direct pecuniary interest adverse 
to the state or municipality which they 
represent. Supervisors v. Hall, 47 Wis. 
208. 

The question arises whether individual 
senators and representatives, in congress 
and in the several state legislatures, have 
the right to act as the judges of their 
own elections. It is ordained, in the fed- 
eral constitution, that " each house shall 
be the judge of the elections, returns, 
and qualifications of its own members." 
Most of the state constitutions contain 
substantially the same provisions. It is 
obvious that this language is not incapa- 
ble of such a construction as will permit 
individual senators and representatives 
to act as judges of their own elections. 
But, at the same time, it is clear that 
such is not its necessary import. It may 
mean, on the one hand, that each house, 
as a body, shall be the judge of the elec- 
tions, returns, and qualifications of its 
own members, but may also permit the 
individual members of each house to be 
judges in their own cases. On the other 
hand, this language may merely mean that 
each house, as a body, shall be the judge 
of the elections, returns, and qualifica- 
tions of its members, without implying 
that individual senators and representa- 
tives shall have the right to act as judges 
in their own cases. The latter interpreta- 



tion, which is manifestly more consistent 
with justice and propriety, would also 
seem to be the more natural and reason- 
able interpretation of the clause under 
consideration. 

It is not to be apprehended that a prac- 
tical adherence to this construction of 
the clause will result in serious public 
inconvenience. In the 28th congress the 
seats of all the representatives from 
the states of New Hampshire, Georgia, 
Mississippi, and Missouri, were con- 
tested on the single ground that they 
had been elected on general tickets by 
the state at large. If the entire mem- 
bership of the house had been involved 
in this objection, then a disability on the 
part of the representatives to vote on 
the question common to all the cases, 
would have resulted in a suspension of 
the legislative department of the govern- 
ment. But in such a case it could hardly 
be claimed that the disability of the re- 
spective representatives extended be- 
yond their own cases, to those of other 
representatives, merely because the same 
legal question was common to all and was 
the only question involved. 

Senator Wade's right to be sworn, as 
a member of the court for the trial of 
President Johnson, was questioned on 
the ground of personal interest in the re- 
sult of the impeachment. After debate 
the objection was withdrawn. What- 
ever valid objections may, or may not, 
have existed to the exercise of the powers 
of a judge, in this case, by Mr. Wade, 
it is obvious that such objections did not 
rest on the ground that he would have 
been acting as a judge in his own cause. 
2 Johnson's trial, 486, 487, 496 ; 3 id. 
360. 



CHAPTER XL. 

PAKLIAMENTAKY CONTESTS— Continued. 

Sec. Secs. 

1. Nature of prima fade title . . 981 | 2. Proof of prima fade title . 982-995 

§ 981. When the house refers a case, in which all the deposi- 
tions and documentary proofs are already filed, to the committee 
of elections, for the determination of the so-called prima facie 
right, or title, to the contested seat, it becomes necessary, of course, 
to decide what part of the evidence is to be used, in the determi- 
nation of such prima facie right, or title. Such a case differs 
widely from those in which questions pertaining to prima facie 
proof arise before ordinary judicial tribunals. Before such 
tribunals that is denominated prima facie proof, which, being 
offered by either party, in support of a position, is sufficient, if 
uncontradicted, to establish that position. In the case now under 
consideration, all the proofs, including depositions, as well as docu- 
mentary evidence, being already before the house and committee, 
the question is, not which of the claimants has introduced proofs 
sufficient, if uncontradicted, to establish his title to the seat, but 
which has presented that specific form of proof, which is accepted 
as sufficient to establish what is denominated a prima facie right, 
or title, to the seat. In some cases the house has expressly 
restricted the committee, in their adjudication of the prima facie 
title, to certain specified instruments of proof. But such restric- 
tions have usually proved to be unwise, because, being imposed 
by the house in ignorance of the actual condition of the evidence 
as also of the essential character of the case itself, they have de- 
prived the committee of a discretion which, as shown by subsequent 
investigations, might have been exercised by the committee, not 
only without detriment to the public interest, but with manifest 
benefit to the particular constituency concerned, as well as to the 
house and country. 1 What part of the proof, then, is to be used 
by the committee, when not specifically instructed by the house, 

J For example see Covode v. Foster, 2 Bart. 519. 

815 



816 

in the determination of the prima facie right, or title, to the con- 
tested seat ? Evidently not the depositions ; for, if the depositions 
are all used, the case is practically decided on its merits. And if 
the depositions, as a whole, are not to be used, obviously none 
are to be used. For it would work injustice to one party, or the 
other, to use a part and exclude the residue. In the determination 
of the prima facie title the proper course for the committee is to 
consider only those documentary proofs, which, being legally com- 
petent, are admissible, under the practice of the house, to establish 
the right of the representative to be sworn, at its organization. 
The form of these proofs will depend upon the statutes of the 
respective states, and of the United States, and may be (1) a 
governor's proclamation, or a certified copy thereof, a governor's 
certificate or a certified copy thereof, or a certificate of such other 
officer, or officers, as may be authorized, by the laws of the 
particular state, to issue a certificate of the election of the repre- 
sentative ; (2) an authenticated copy of the district canvass, made 
by either the district, or state, canvassers, as the statute may 
prescribe ; (3) authenticated copies of the returns, or canvasses, 
made by the county canvassers ; (4) authenticated copies of the 
precinct returns, or canvasses, which may, or may not, include 
the poll-books and 'tally-sheets ; and (5) official certificates made 
evidence by law. In the adjudication of the prima facie right, 
these proofs are graded in the order above indicated, which is the 
reverse of the order of their value as evidence in cases tried upon 
the merits. 

§ 982. The usual form of credentials is a certificate from the 
governor of the state. But no particular form is considered neces- 
sary by the house. And while the governor's certificate, when it 
shows the person named therein to have been regularly elected, is 
always held to be competent and satisfactory evidence of prima 
facie right to the seat, the house has often decided that the want 
of it will not impair, or prejudice, such prima facie right of a 
member elect, but will only remit him to other evidence to estab- 
lish it. x If the certificate shows, upon its face, that the officer 
has not been legally elected, it does not constitute prima facie 
evidence of title to the office. 2 

§ 983. Alexander H. Coffroth and William H. Koontz each 

1 Gunter v. Wilshire, Smith, 130. 2 Hartt v. Harvey. 32 Barb. 55. 



817 

asserted the prima facie right to a contested seat in the thirty- 
ninth congress. Neither claimant was admitted to the seat, at 
the organization of the house. Neither claimant held the gov- 
ernor's certificate. The basis of Coffroth's title was a document 
purporting to be a return of the votes of four of the five counties 
of the district, accompanied by a document purporting to be a 
certificate of four of the five district canvassers in his favor. The 
basis of Koontz' title was a document purporting to be a return 
of the votes of all the five counties of the district, accompanied 
by a document purporting to be a certificate of five canvassers. 
The house referred the prima facie case to the committee, " with 
instructions to report, at as early a day as practicable, which of 
the rival claimants to the vacant seat, from that district, has the 
prima facie right thereto, reserving to the other party the privilege 
of contesting the case upon the merits, without prejudice from 
lapse of time or want of notice." The majority (five) of the com- 
mittee concluded (1) that, under the resolution of reference, the 
prima facie right to the seat was, in the absence of the governor's 
certificate, to be determined by the district return, without con- 
sidering either the county returns, or the precinct returns ; (2) that 
the district return, which showed a majority of ninety -three votes 
in favor of Coffroth, was signed by four of the five legal district 
judges, or canvassers, and was valid, although it did not include 
the vote of Somerset county, which, they alleged, if included, 
would not have changed the result, and that the district certificate 
itself constituted a sufficient prima facie title to the seat ; (3) 
that the return in favor of Koontz was signed by only one legal 
district judge, Winter, who also signed the district return in favor 
of Coffroth ; (4) that, if the committee should go behind the dis- 
trict return, it would be compelled to stop at the county returns, 
without considering the precinct returns, or soldiers' returns ; (5) 
that the county returns, signed by all, or by a majority, of the 
respective county boards, showed a majority of eighty-eight votes 
in favor of Coffroth, and his prima facie right to the seat ; (6) that 
most of the soldiers' votes were too defective in form to pass a 
legal scrutiny. The house decided that Coffroth held the prima 
facie title to the seat. 1 

1 Koontz v. Coffroth, 2 Bart. 25. ion (1) that the governor's certificate, or 

The minority (four J were of the opin- proclamation, if duly presented, would 

52 



818 



§ 984. The house referred to the committee of elections " so 
much of the proclamation of the governor of Pennsylvania, dated 
November 17, 1868," as related "to the election of representatives 
in the twenty-first district of said state, and the letter of said 
governor, dated February 23, 1869, relative thereto, together with 
the papers referred to in said letter, with instructions to report to 
the house what person, according to said proclamation, letter, and 
papers, is entitled, prima facie, to represent said twenty-first 
district in the twenty -first congress, pending any contest that may 
arise concerning the right to such representation." In the proc- 



have been evidence of such &prima facie 
right to the seat as would have author- 
ized the clerk, under the law of congress, 
to place the name of the claimant on the 
roll at the organization of the house ; 
(2) that the return of the board of dis- 
trict judges, transmitted, by the gov- 
ernor, to the house of representatives, in 
accordance with the law of Pennsyl- 
vania, would also probably have estab- 
lished such prima facie right, if unim- 
peached, provided it were accompanied 
by proper proof that the election was 
held in accordance with federal or state 
law ; (3) that possibly the certificate of 
election, which the board of district 
judges is required to transmit to the 
representative elect, if satisfactorily au- 
thenticated and unimpeached, would 
also establish a technical prima facie 
right, provided it were, at the same 
time, properly shown that the election 
was held in accordance with state or 
federal law ; (4) that the governor's cer- 
tificate and proclamation showed no elec- 
tion in this district, and the return of 
the district board in favor of Coffroth 
was insufficient, because it did not show 
that either claimant was elected accord- 
ing to the laws of Pennsylvania or of 
the United States ; it was not authen- 
ticated ; it was contradicted by the gov- 
ernor's proclamation ; it was neutralized 
by the returns in favor of Koontz ; and 
it did not purport to embrace all the 
counties in the district ; that the return 
in favor of Koontz was open to the same 



objections ; and that the certificates in 
favor of the respective claimants were 
insufficient for substantially the same 
reasons. The minority therefore con- 
cluded that neither of the claimants had 
established such a prima facie right as 
would have authorized the clerk to place 
his name on the roll, at the organization 
of the house, and that this would dis- 
pose of the case, if the house intended 
to instruct the committee to report which 
claimant had such a prima facie right. 
But they understood the house, by the 
resolution of reference, to have required 
the committee to report which claimant, 
if either, was, by the certificates and 
papers referred, without additional con- 
firmatory or contradictory proofs, shown 
to be entitled to the disputed seat. And 
they held that the documents, which 
were referred to the committee and were 
competent evidence, established the 
prima facie right of Koontz to the seat. 
They dissented from the conclusion of 
the majority that the return of the dis- 
trict board in favor of Coffroth ought to 
be held conclusive as to the four counties 
which it purported to embrace. They 
also dissented from the conclusion of 
the majority that, if the committee 
should go behind the return of the dis- 
trict board, they ought to hold the 
county returns as conclusive. Coffroth 
was admitted to the contested seat on 
the "prima facie case, but was subse- 
quently evicted, on the trial of the case 
on its merits. 



819 

lamation the governor declared certain persons to have been 
elected representatives of other districts, but, as to the twenty- 
first, stated that " no such returns of the elections had been 
received by the secretary of the commonwealth as would, under 
the election laws of the state, authorize him to proclaim the name 
of any person as having been returned duly elected a member of 
the house of representatives of the United States for that district." 
The affidavits, referred to the committee, tended to show that 
frauds and irregularities were perpetrated, at the election, but 
they did not, nor did any of the documents referred, show how 
many votes either candidate received, or how many votes were 
improperly received or rejected. The house decided that neither 
party had shown a prima facie title to the seat. * 



1 Oovode v. Foster, 2 Bart. 519. The 
letter of the governor was in the follow- 
ing words : 

" Executive Chamber, Harrisburg, 
Pennsylvania, February 23, 1869. Sir : I 
have the honor to transmit herewith ad- 
ditional affidavits and evidence of fraud, 
submitted to me in regard to the election 
of member of congress, in the twenty- 
first congressional district of this state. 
These affidavits were taken before officers 
properly authorized to administer oaths, 
and indicate the election of Hon. John 
Covode. John W. Geary, Governor of 
Pennsylvania. (To) Hon. Edward Mc- 
Pherson, Clerk House of Bepresenta- 
tives, Washington, D. C." 

"State of Pennsylvania, Office of the 
Secretary of the Commonwealth, Harris- 
burg, Pennsylvania, February 23, 1869. 
I hereby certify that the signature of 
John W. Geary, Governor of the Com- 
monwealth, to the attached letter, is his 
genuine signature ; and that the accom- 
panying affidavits and papers are the 
originals, filed in this office, from time 
to time, since the election held on the 
13th of October last. In testimony 
whereof I have hereunto set my hand, 
and caused the seal of the Secretary's 
office to be affixed the day and year 
above written. 

[seal.] "F. JOED AN, 

" Secretary of the Commonwealth.'''' 

The majority of the committee held 
that if the governor intended the letter 
as a supplemental proclamation, he had 
a right to make it, under the precedent 



established in the case of Butler v. Leh- 
man, 1 Bart. 353 ; that the statute of 
Pennsylvania prescribed no particular 
form for the proclamation; that the 
language of the resolution of reference 
implied that the house had decided that 
the papers referred showed some one to 
be prima facie entitled to the seat, and 
the only duty of the committee was to 
ascertain who the person was ; that the 
proclamation disposed of Foster's claim ; 
that the governor's letter seemed to show 
the election of Covode, and having been 
admitted, with the affidavits, as evidence, 
by the resolution, established Covode's 
prima facie right to the seat ; and they 
recommended his admission, pending the 
contest. 

The minority of the committee con- 
cluded that the questions to be decided 
were, first, whether the papers referred, or 
any of them, constituted legal evidence, 
and, second, whattheyprovedif accepted 
as legal evidence ; that the proclamation 
was admissible, as evidence, but proved 
nothing in favor of either of the claim- 
ants ; that the letter, being unauthorized 
by law, had no official character, and 
was no more legal evidence than the 
unsworn statement of any other citizen 
of Pennsylvania ; and that, inasmuch 
as it was not legal evidence, it was not 



820 

§ 985. In a case, which occurred in the forty-third congress, the 
governor did not declare, in the credentials, that either claimant was 
elected, but certified that 12,644 votes were cast for W. "W". Wil- 
shire, 11,499 for Thomas M. Gunter, 12 for Wilshire, 591 for 
Gunter, and 1456, in unspecified proportions, for Guntee, S. M. 
Gunter, T. M. Guntee, T. Ros Gunter and Thos. M. Crenter. But 
the proofs, on file, showed that 12,644 votes were cast for W. W. 
Wilshire, 13,514 for Thomas M. Gunter, 12 for Wilshire, and 32 
for Thomas M. Crenter. The house referred the case to the com- 
mittee, by the following resolution, neither party having been 
enrolled by the clerk : " Resolved, That the credentials and papers 
in possession of the clerk of the house, in the cases of contested 
elections from the first and third districts of Arkansas, be referred 
to the committee on elections, with instructions to report at the 
earliest day practicable who of the contesting parties are entitled 
to be sworn in as sitting members of this house." A majority of 
the committee decided that Wilshire was entitled prima facie to 
the seat. The minority recommended a recommitment of the 
case, for trial, upon its merits. The proposition of the minority 
was rejected, by a vote of 116 to 117 ; the report of the majority 
was then adopted, by a vote of 118 to 96. 1 

§ 986. In a case, which occurred in the forty-first congress, a 
majority of the committee reported that one of the papers referred 
purported to be a certificate in favor of Hoge, signed by all four 
of the state canvassers, and the other purported to be a certificate 
in favor of Reed, signed by three of the state canvassers ; that 
these certificates differed also in this that, while it was stated, in 
Reed's, that he was duly elected, by a majority of votes, it was 

material to enquire whether, if it were, evidence, open for the decision of the 

it would amount to prima facie proof committee and the house ; that the case 

that either claimant was entitled to the of Butler v. Lehman was no authority 

seat ; that the affidavits were made ex for the action of governor Geary in the 

parte, were not authorized by law, and not premises; and finally that the procla- 

legal evidence in the case, and that, if mation, letter, and papers referred, did 

they were evidence, they would not, not show who was prima facie entitled 

apart from the letter, show a prima facie to the seat. The house overruled the 

right to the seat in either of the claim- majority of the committee and recom- 

ants ; that the language of the resolution mitted the case, for investigation, upon 

of reference did not impart the character its merits, leaving the seat vacant pend- 

of legal evidence to the papers, but left ing the contest, 
the question of their competence, as 1 Gunter v. Wilshire, Smith, 130. 



821 



stated, in Hoge's, that he was duly elected, by a majority ofj the 
legal votes ; that one of the three canvassers who signed Reed's 
certificate had subsequently withdrawn his signature, leaving only 
two, which, under the statute, were not sufficient for a valid cer- 
tificate ; that it was the intention of the canvassers that Hoge's 
certificate should supersede Reed's ; that the right of the canvass- 
ers to supersede one certificate by another was settled by the 
case of Morton v. Daily, 1 and was maintainable on principle, 
because the subject was entirely within the control of the can- 
vassers until the roll of the house was made up by the clerk, and 
until then there was no vested right, under a certificate, which 
could prevent the canvassers from rectifying any error which might 
have occurred in their action ; and that Hoge was, jjrima facie, 
entitled to the seat. The house concurred in the report of the 
committee. 2 



1 Morton v. Daily, 1 Bart. 403. 

2 Hoge v. Reed, 2 id. 540. The mi- 
nority of the committee found that the 
laws of Sonth Carolina required the state 
canvassers to prepare three certificates, 
the first showing the number of votes 
given for each of the offices voted for, 
the second determining and declaring 
what persons were, by a majority of the 
votes, duly elected to the several offices, 
and the third declaring the due election 
of the persons chosen as the represent- 
atives of the state in congress ; that the 
first and second were to be recorded by 
the secretary of state, and published in 
one or more newspapers in each of the 
counties of the district ; that a copy of 
the second was to be sent forthwith, by 
the secretary of state, to the person de- 
clared elected, and another copy to the 
governor, and the third was to be ad- 
dressed and transmitted to the house of 
representatives of the United States ; 
that the first certificate, showing 11,744 
votes for Reed, and 8,766 for Hoge, and 
the second certificate, declaring that 
Eeed had been duly elected by a major- 
ity of the votes, both signed by all four 
of the canvassers, were published on the 
5th of December, 1868 ; that the gov- 



ernor issued a commission to Reed, dated 
December 2, 1868, declaring that it ap- 
peared, from the returns, that he had 
been duly elected, by a majority of 
votes ; that the only papers, offered in 
support of Hoge's claim, were, first, a 
certificate of the state canvassers, pur- 
porting to be of the same date as Reed's, 
and, second, a separate "statement of 
the board of state canvassers of South 
Carolina, in the case of the election of 
J. P. Reed ;" that Hoge's certificate dif- 
fered from Reed's second certificate in 
three particulars — it declared him to 
have received a majority of legal votes, 
while Reed's declared him to have been 
duly elected by a majority of votes ; it 
bore the names of all four canvassers, 
while Reed's, as presented in manuscript, 
only bore the names of three, and it also 
bore the governor's signature, which was 
wanting in Reed's ; that the phraseology 
of Reed's certificate was, while that of 
Hoge's was not, in compliance with the 
statute ; that three signatures were suffi- 
cient, under the law ; that the governor's 
certificate was wholly unauthorized by 
law ; that the governor did not commis- 
sion Hoge, and no certificates, showing 
a result in his favor, were published ; 



822 

§ 987. The statute of Kentucky contained the following pro- 
vision : " The sheriffs of the several counties, in each district, 
shall, on the fifteenth day after the commencement of their elec- 
tions, assemble at the places hereinafter designated in each of 
their respective districts, and then, by faithful comparison and 
addition, ascertain the person elected in their districts. * After 
having ascertained, as before directed, the person elected in such dis- 
trict, the sheriffs thereof shall make out a certificate of the election of 
the person in their district, which shall be signed by all the sheriffs 
of the district and which shall be lodged with the sheriff of the 
county wherein the polls are compared, and by him, together with 
a copy of the polls, transmitted to the secretary of state." There 
was no law authorizing the governor, or other state officer, to give 
certificates of election. In a contest between Thomas P. Moore 
and Robert P. Letcher, from the fifth district of Kentucky, Moore 
based his prima facie claim upon a certificate signed by only three 
of the five sheriffs, and purporting, on its face, to embrace the vote 
of only four of the five counties of this district. Letcher based 
his prima facie claim on the transcripts of the poll-books, duly 
certified by the county clerks, which showed the following result : 
For Letcher, Jessamine 581, Anderson 199, Lincoln 650, Mercer 
1,075, Garrard 685 ; total, 3,190. For Moore, Jessamine 489, An- 
derson 436, Lincoln 501, Mercer 247, Garrard 1,468 ; total, 3,141. 
The contest commenced before either claimant was sworn in, or 
the house organized. After prolonged debate the house, with the 
consent of the parties, resolved to permit neither claimant to be 
sworn, until after the decision of the contest on its merits, and 
referred the case to the committee of elections. 1 

that Hoge's certificate, although dated feet the attitude of the case ; and that 

December 2, 1868, was, in fact, executed Hoge was not, prima facie, entitled to 

after December 8, 1868, and after the the seat. The house sustained the report 

five days limited by law for the existence of the majority of the committee by a 

of the board had expired, and was, for two-thirds vote. 

that reason, void ; that it was also in- x Letcher v. Moore, C. & H. 715. The 

valid because it was not in the power of certificate was in the following words : 

the canvassers, even during their official .. _,, . T ^ . „.„., ^ 

, . , J\ . . t .' "State of Kentucky, Fifth Congres- 

existence, to rescind an official act which sional D istrict We , the under si g ned, 

had been completed, and on which the sheriffs of the counties of Mercer, Gar- 
publication, the certificate issued to rard > Anderson, Lincoln, and Jessamine, 
Eeed, and the governor's commission composing said fifth congressional dis- 
. , » . , .. , ., , , , trict, do certify that on the fifteenth day 
had been issued ; that the supplemental after the commencement of the late con- 
statement of the canvassers did not af- gressional election for said district, to wit, 



823 



§ 988. The second congressional district of the state of Louisi- 
ana embraced the parishes of Orleans, Jefferson, La Fourche, St. 
Charles, St. James, St. John Baptist, and Terrebonne. The house 
referred to the committee two documents signed by the governor, 
and a report of a committee of investigation of the legislature of 
the state, with instructions to inquire into the prima facie title to 
the seat, and into the validity of the election. In one of the docu- 
ments referred the governor certified that Lionel A. Sheldon, 
having received 5,108 and Caleb S. Hunt, 2,853 of the votes re- 
turned, as required by law, the former had received a majority. 



on the 20th day of August, 1833, we met 
at the court house, in Harrodsburg, Mer- 
cer county, and, adjourning from day to 
day, made a faithful comparison and ad- 
dition of the votes and polls for said 
congressional election, for said district, 
and found and accordingly certify that 
Thomas P. Moore is duly elected repre- 
sentative to congress, from the said fifth 
congressional district, by a majority of 
the qualified votes of said district. Given 
under our hands this 21st day of August, 
1833. The vote of Lincoln county not 
taken iuto calculation. Jacob Keller, 
deputy for G. W. Thompson, S. M. C; 
R. Walker, deputy for John Wash, S. A. 
C. ; James H. Lowry, deputy for John 
Downing, S. J. 0." 

It was contended, on behalf of Moore, 
that the signatures of a majority of the 
sheriffs were sufficient to entitle him to 
be sworn ; that before the organization 
of the house no one had a right to object 
to his being sworn, or to decide the ques- 
tion of his right to be sworn ; that Moore 
had the same evidence of his election, 
from the governor of Kentucky, which 
the other representatives from that state 
had ; that it did not appear, from the 
face of the sheriff's certificate, that, if 
the votes of Lincoln county had been 
included, Letcher would have had a ma- 
jority of the votes of the district ; that, 
if Moore's papers were not perfect, they 
were better than Letcher's ; that the 
signatures of all the sheriffs ought not 
to be requisite, because some might re- 
fuse to attend the meeting ; that Moore's 
claim was supported by the precedents 
of Hugunin v. Ten Eyck, C. & H. 501 ; 



Wright v. Fisher, C. & H. 515, and Bid- 
die «. Wing, G. & H. 504. On behalf of 
Letcher it was contended that the certif- 
icate of the sheriffs was invalid, because 
only three of the five sheriffs signed it, 
and because, on its face, it purported to 
embrace the vote of only four of the five 
counties ; that Moore had not the same 
evidence of his election, from the gov- 
ernor, which the other representatives 
from Kentucky had, for, by law, the 
governor had no power except merely 
to transmit to the house the certificates 
of the sheriffs, and those certificates, so 
transmitted, for the other districts were 
signed by all the sheriffs, and embraced 
the vote of all the counties ; that the in- 
validity of the certificate was apparent 
on its face ; that the suggestion that it 
did not appear, on the face of the certif- 
icate, that the vote of Lincoln county, 
if canvassed, would have changed the 
result, was mere special pleading ; that 
although some of the sheriffs might fail 
to attend, yet, in this case, none so fail- 
ed, but all actually attended and the 
sheriff of Lincoln county withheld his 
poll, and he and the sheriff of Garrard 
county failed to sign the certificate ; that 
the words of the statute "shall be sign- 
ed by all the judges " deprived a mere 
majority of any power to make a valid 
certificate ; that in the cases referred to, 
as precedents, the defects were not ap- 
parent on the face of the certificates, but 
were disclosed by the proofs. 



824: 

In the other document the governor showed what votes were 
counted, and what were rejected, with the reasons for such rejection. 
The votes counted were La Fourche, Sheldon 1,613, Hunt 1,799 ; 
St. Charles, Sheldon 1,335, Hunt 264; St. James, Sheldon 2,160, 
Hunt 770 ; total, Sheldon 5,108, Hunt 2,833. The votes rejected 
were : Orleans, Sheldon 125, Hunt 11,535 ; Terrebonne, Sheldon 
1,541, Hunt 1,297 ; St. John Baptist, Sheldon 1,278, Hunt 452 ; 
Jefferson, Sheldon 662, Hunt 2,224 ; total, Sheldon 3,606, Hunt 
15,508. The reason assigned for the rejection of the vote of Or- 
leans was that the returns were made by the officers of registration. 
The majority of the committee held that, whatever might be the 
result of a contest involving the sufficiency of the reasons assigned 
for the rejection of the votes which were rejected, the two docu- 
ments on their face showed that Sheldon held the prima facie title 
to the seat. But the minority concluded that the statute of Louisi- 
ana required the returns to be made by the officers of registration ; 
that the committee and house were bound to take notice of this 
provision of the statute ; that the vote of Orleans was, therefore, 
unlawfully rejected ; and that the documents, signed by the gov- 
ernor, read in the light of the statute, showed the prima facie title 
to be in Hunt. The house sustained the report of the majority, on 
various grounds, by a vote of 85 to 38. x 

§ 989. In the case of Simpson v. Wallace, each claimant held a 
certificate, duly signed, and in legal form, which, standing alone, 
would have entitled him to a seat. But the canvassers, in a sup- 
plemental statement, set forth that, while they had felt constrained 
to declare, upon the returns, that Simpson had been jprima facie 
elected, they found, upon evidence presented to them, that the 
election was accompanied by such disorder and outrages, on the 
part of the political friends of Simpson, as to make the apparent 
result different from the result which a free and orderly election 
would have secured, and one of the canvassers declared his name 
withdrawn from Simpson's certificate. The majority of the com- 
mittee held, that the supplemental statement destroyed Simpson's 
certificate ; that it was competent for the canvasser to withdraw 
his signature ; and that Wallace had the prima facie right to the 
seat. The minority took the same ground as in the case of Beed 
v.«Hoge, and offered a resolution declaring that Simpson was ineli- 

1 Hunt v. Sheldon, 2 Bart. 530. 



825 

gible, under the resolution of March 22, 1869, and that Wallace was 
not entitled, prima facie, to the seat, because not shown to have 
been duly elected by the greatest number of votes. The resolution 
of the minority was adopted by the house, and the case was recom- 
mitted for investigation on its merits. 1 

§ 990. Where the territorial statute provided that the canvassers 
should canvass the votes, in the presence of the governor, and the 
governor should give a certificate of election to the person having 
the highest number of votes, it was held, by a majority of the 
committee, that, while a reference to the canvass in the certificate 
was not essential to its validity, yet, upon proof that the canvass? 
on which the certificate was predicated, was determined against 
the votes of two of the three canvassers, by the governor, who 
first made a tie, and then gave a casting vote, the certificate should 
be rejected as illegal and invalid, and the claimant should not be 
permitted to occupy the seat pending the contest. 2 

§ 991. The original constitution of Minnesota provided for the 
election of three representatives, while the act of admission fixed 
the number at two. Only two were returned. It was held, by the 
committee, that, inasmuch as their credentials were regular, they 
were, prima facie, entitled to their seats, and, besides, if the ques- 
tion of their election had been presented to the committee, there 
would have been nothing before the committee to justify the rejec- 
tion of their claims. 3 

§ 992. The speaker laid before the house two letters, one from 
Uriah Forrest, a representative from the state of Maryland, setting 
forth that he had presented his resignation to the executive of that 
state, and that Benjamin Edwards had been elected in his stead, 
and the other from the clerk of the council of Maryland to Benja- 
min Edwards, stating that a certificate of his election had been 
transmitted to the speaker of the house. It was decided, by the 
committee, that these two letters did not constitute sufficient cre- 
dentials for Edwards. 4 

§ 993. A territorial secretary attested the governor's certificate 
of election in favor of one candidate and five months later, as acting 
governor, executed a certificate in favor of another. It was held, 

1 Simpson v. Wallace, 2 Bart. 522. 3 Cases of Phelps and Oavanaugh, 1 

2 Hunt V. Ghilcott, id. 164. Bart. 248. 

4 Edwards' case, C. & H. 93. 



826 

by a majority of the committee, that the power, haying been once 
exercised by the proper officer, could not be again exercised by 
his successor, and that the claimant, who held the second certificate, 
could not be admitted to the seat pending the contest. But the 
house overruled this decision and admitted the claimant having 
the second certificate, by a vote of 91 to 36. 1 

§ 994. The first congressional district of Virginia was composed of 
seventeen counties. On the 15th of March, 1862, a special election 
of representatives was held in the several precincts of two counties, 
and in one precinct of a third county, the aggregate vote cast being 
1,018. The population of these two counties was one fourth of 
that of the entire district. The other fourteen counties were, at 
the time of the election, and for a long time had been, in posses- 
sion of the confederate army, and the confederate authorities had 
proclaimed martial law over them. The committee were unable to 
agree upon any recommendation, but the house, on the ground 
that the claimant held regular credentials, and was prima facie 
entitled to the seat, admitted him by a vote of 71 to 47. 2 

§ 995. Where the district return judges had certified to the elec- 
tion of the contestant, including in their canvass a forged precinct 
return, which was decisive of the result, and the governor, taking 
notice of the forgery, for which the perpetrator had, upon convic- 
tion, been imprisoned, declared by his proclamation that the 
sitting member was elected, the house, at its organization, notwith- 
standing the protest of the contestant, awarded the seat to the 
sitting member. 3 

1 Hunt v. Chilcott, 2 Bart. 164. 3 Butler c. Lehman, 1 Bart. 353. 

2 Segar's case, 1 id. 414. 



CHAPTER XLI. 



PAKLIAMENTAKY CONTESTS— Continued. 



Secs. 

1. Notice of contest. 

(1) Form and substance . 996-1001 

(2) Time, place, and manner of 

service . . 1002-1005 

(3) Proof of service . . . 1006 

(4) Defects; irregularities ; 

amendments . . . 1007 

(5) Withdrawal of notice . . 1008 

2. Protest of electors . 1009-1012 

3. Answer; form .... 1013 

4. Res judicata . . 1014-1020 

5. Proofs. 

(1) Depositions . . 1021-1031 



Secs. 

(2) Documentary proofs . . 1032 

(3) Ex parte affidavits . . 1033 

(4) Census reports . . . 1034 

(5) Muster-rolls . . . 1035 

(6) Proceedings of legislative, 
. executive, or judicial au- 
thorities of state . . 1036 

6. Construction of state laws . 1037 

7. Stipulations . . 1038,1039 

8. Laches . . . . 1040 

9. Trial 1041 

10. Subsequent proceedings . 1042 



§ 996. It is provided by law 1 that a party, proposing to con- 
test the right to a seat in the house of representatives of the 
United States, shall, within thirty days after the determination of 
the result, serve upon the party, in whose favor the result shall 
have been determined, a notice specifying the grounds of the con- 
test. But, while the failure to serve such notice will exclude the 
party from the privileges of a technical contest, it will not affect 
the power of the house, in its own discretion, to investigate the 
case, and to award the seat to the party lawfully entitled thereto. 
In Massachusetts want of notice to the sitting member, prior to 
the meeting of the legislature, is not a sufficient ground for the 
refusal of a hearing of the petitioners. 2 When the election of two 
representatives, in the Massachusetts legislature, voted for at the 
same balloting, stood upon the same ground, the fact that one of 
them was too sick to be informed of the petition against their 
election did not prevent the committee from hearing and deciding 
the cases of both. 3 In England it is a condition precedent to the 
trial of a municipal election petition that, within five days after 
its presentation, the petitioner shall, in the prescribed manner, 



Rev. Stat. s. 105. 

Whiting's case, C. S. & J. 373. 



3 Bourne's case, C. S. & J. 523. 



827 



828 

serve on the respondent a notice of the presentation, and of the pro- 
posed security, and a copy of the petition, as required by statute. 1 



1 Williams v. Tenby, 42 L. T. N. S. 187 ; 
35 & 36 Vict. c. 60, s. 14, snb-s. 4. 

The following form of the notice of 
contest embraces objections which are 
often involved in cases adjudicated by 
the house of representatives of the 
United States : 

Milwaukee, Wisconsin, 
November 15, 1870. 
Hon. Henry C. Blackmer. 
Kenosha, Wisconsin. 

Sir : You are hereby notified that I 
shall contest your right to occupy a seat 
in the house of representatives of the 
United States, as the representative of 
the first congressional district of the state 
of Wisconsin, in the forty-second con- 
gress, on the following grounds : 

1. You were not a citizen of the United 
States on the day when the election, 
under which you claim, was held. 

2. At the precinct of the fifth ward of 
the city of Milwaukee, ninety-three bal- 
lots were unlawfully and fraudulently 
deposited for you, in the ballot-box, af- 
ter the close of the polls, on the day of 
said election, and before the canvass of 
the votes. 

3. At the precinct of the second ward 
of the city of Racine, seventy-six ballots, 
which had been lawfully cast for me, 
were fraudulently abstracted from the 
ballot-box, after the close of the polls, 
and before the canvass of the votes cast 
at said election. 

4. At the precinct of the first ward of 
the city of Kenosha, nineteen ballots 
were deposited for you, in the ballot- 
box, at said election, by persons who 
were under the age of twenty-one years. 

5. At the precinct of East Troy, in the 
county of Walworth, eighteen legally 
qualified voters were prevented from 
voting for me, at said election, by vio- 
lence and intimidation perpetrated by 
your partisans. 



6. At the precinct of Whitewater, in 
the county of Walworth, eighty-three 
legally qualified voters, who were pres- 
ent at the polls, on said day, and tendered 
their ballots, in my favor, were prevented 
from voting by the fraudulent miscon- 
duct of the officers of election. 

7. At the precinct of Oak Creek, in 
the county of Milwaukee, eighty-one 
votes were unlawfully cast for you, by 
persons who were not, and had not de- 
clared their intention of becoming, citi- 
zens of the United States. 

8. At the precinct of Oconomowoc, in 
the county of Waukesha, sixty-five votes 
were unlawfully cast for you, at said 
election, by persons who were not resi- 
dents of the state of Wisconsin. 

9. At the precinct of Waukesha, in the 
county of Waukesha, thirty -four persons, 
who were lawful electors of said pre- 
cinct, duly registered therein, were pres- 
ent at the polls, on the day of said 
election, between the hours of one and 
four o'clock, in the afternoon, and pre- 
sented their ballots to the officers of 
election, in legal form, in my favor ; but 
their ballots were not received, nor can- 
vassed in my favor. 

10. At the precinct of Raymond, in 
the county of Racine, fifty-seven ballots, 
lawfully cast for me, were fraudulently 
abstracted from the ballot-box, before 
the votes of the precinct were canvassed, 
and fifty-seven ballots, bearing your 
name, were fraudulently substituted in 
the ballot-box, for the votes so ab- 
stracted, and were canvassed in your 
favor. 

11. At the precinct of Elkhorn, in the 
county of Walworth, nineteen votes were 
cast for you, at said election, by persons 
who had not been registered, and were 
not duly sworn, according to law. 

12. In the return of the precinct of 
Brighton, in the county of Kenosha, 



829 

§ 997. A petition against a sitting member ought to state the 
grounds, on which the election is contested, with such certainty 



the officers of election falsely and fraud- 
ulently certified that three hundred and 
twenty-one votes were cast for you, at 
said election, whereas only one hundred 
and seventeen were, in fact, then and 
there cast for you. 

13. The election in the precinct of 
Hartland, in the county of Waukesha, 
at which eighty-seven votes were cast 
for you, and ten for me, was not held at, 
or near, the place designated by law, 
but, without necessity or excuse, was 
held at a point distant therefrom more 
than one mile. 

14. The election in the precinct of 
Delavan, in the county of Walworth, 
at which one hundred and three votes 
were cast for you, and forty for me, 
was not held on the day designated by 
law. 

15. At the precinct of Waterford, in 
the county of Racine, eighty-four votes 
were unlawfully cast for you, at said 
election, by persons who had already 
voted once, each, at said election. 

16. At the precinct of Wauwatosa, in 
the county of Milwaukee, forty-two 
votes were cast and canvassed for you, 
and one hundred and sixty- eight forme, 
but, through mistake, or fraud, on the 
part of the officers of election, the pre- 
cinct return showed that one hundred 
and sixty-eight votes were cast for you, 
and only forty-two for me ; and the votes 
so returned were canvassed by the county 
and state boards of canvassers. 

17. At the precinct of Granville, in 
the county of Milwaukee, thirty-four 
votes were cast for you, and two hun- 
dred and twenty-four for me, at said 
election ; and said votes were duly can- 
vassed by the precinct officers, and duly 
returned to the county canvassers of 
said county ; but said county canvassers 
unlawfully refused to canvass any of said 
votes. 



18. At the precinct of Oak Creek, in 
the county of Milwaukee, three votes 
were cast for you, at said election, by 
persons who had been convicted of 
forgery, in said state, and imprisoned 
therefor, in the penitentiary of said state. 

19. At the precinct of Sharon, in the 
county of Walworth, three votes were 
cast for you by proxy, at said election, 
and were canvassed for you, by the pre- 
cinct, county, and state canvassers. 

20. At the precinct of Lyons, in the 
county of Walworth, where two hun- 
dred and seventeen votes were cast for 
you, and thirty-one for me, said election 
was held on two different days. 

21. The county of Ozaukee, in which 
three thousand one hundred and ninety- 
three votes were cast, canvassed, and 
returned for you, at said election, and 
eight hundred and fourteen for me, was 
not a part of said congressional district, 
at the time of said election. 

22. At the precinct of Oconomowoc, 
in the county of Waukesha, after the 
polls were closed, and before the votes 
were canvassed, the ballot-box was left, 
for an hour, unsealed in a dram shop in 
the custody of drunken and disreputable 
persons, who were not officers of the 
election, but were all your partisans, 
and under such circumstances as to 
make the falsification of the ballots easy 
and probable. 

23. The county canvassers of said Mil- 
waukee county refused to canvass, in 
my favor, fifty-one votes which were law- 
fully cast for me at the precinct of 
Greenfield, in said county, because my 
surname was spelled Gaylor, instead of 
Gaylord. 

24. You were not an inhabitant of the 
state of Wisconsin at the time of said 
election. 

Very respectfully, 

EDWARD H. GAYLORD. 



830 

as to give him reasonable notice thereof, and to enable the house 
to judge whether the facts, if true, be sufficient to vacate the 
seat. 1 Under the act of 1851 it is not necessary that the notice 
of contest should contain the names of illegal voters. 2 In a 
petition against the return of a member of the British parlia- 
ment, it is sufficient to allege generally that the respondent, by 
himself and his agents, has been guilty of bribery. 3 A notice of 
contest, which did not indicate the number of alleged illegal 
votes, but contained an allegation that enough illegal votes were 
polled to change the result, was approved by the majority of the 
committee, but disapproved by the minority. 4 Certain mem- 
bers of the house of representatives of the state of Pennsylvania 
charged that the election of Simon Cameron to the senate of the 
United States was procured, as they were informed and believed, 
by corrupt and unlawful means, influencing the action and votes 
of certain members of the house of representatives of that state ; 
and they requested the senate of the United States to institute an 
investigation of the charges. The senate refused to order the in- 
vestigation, on the ground that the charges were too vague and 
indefinite to justify it ; that not a single fact or circumstance was 
detailed as a basis of the charges ; that the nature of the means, 
alleged to be corrupt and unlawful, was not set forth, nor was the 
time, place, or manner, of using them, nor Mr. Cameron's partici- 
pation in, or knowledge of, the alleged corruption ; and that the 
house of representatives of the state legislature was itself the 
proper tribunal to investigate the charges. 5 

§ 998. "Where the notice of contest contained the following speci- 
fication of the grounds on which the contestant claimed the seat, 
viz., " that the returns made by the returning officers, as officially 
announced, are incorrect, and that the poll-books of the several 
counties in this district show that I received a majority of the 
legal votes, polled in the said district, for the said office, and am 
entitled to the certificate of election therefrom," it was held, by the 
majority of the committee, that the first of these allegations was 
sufficiently certain and definite to authorize an investigation of 

1 Leib's case, C. & H. 165. 5 Cameron's case, 1 Bart. 627; Cong. 

2 Wright v. Fuller, 1 Bart. 152. Globe, 34 Cong. 3 Sess. pp. 387 to 391. 
3 Beale v. Smith, 38 L. J. C. P. 145. The senate concurred without a division. 
4 Wright v. Fuller, 1 Bart. 152. 



831 

the correctness of the returns made by the returning officers of any 
precinct in the district ; that it embraced all the precincts, in gen- 
eral terms, and was as good a compliance with the law of 1851, 
and as serviceable to the sitting member, as if every precinct in 
the district had been specifically named. And, under this notice, 
they admitted proof that a ballot-box, in which ballots had been 
locked at the close of the precinct canvass, on the 7th of Novem- 
ber, had been unlocked on the 2d of March following, and a new 
count made, by the persons who had acted as judges and clerk at 
the election, which new count showed a change of three votes, and 
changed the result of the election in the district. The minority 
were of the opinion that the notice contained no such specification 
of the ground of contest as the law required, that, under it, the evi- 
dence relating to the recount mentioned was not admissible, and 
that this evidence was also, in its nature, less reliable than the 
first count. The house evicted the sitting member, by a vote of 
94 to 90, and rejected the contestant, by a vote of 91 to 89. 1 

§ 999. An allegation that certain votes were " illegal and bad, 
being received and certified by the selectmen, or presiding officers, 
of whom the sitting member was one, and being given by proxy," 
was adjudged sufficient, by the house, without a specification of 
the names of the persons for whom the votes were cast. 2 But an 
allegation that certain votes were illegal and bad, being " received 
and certified by the said presiding officers, which were given by 
persons by law not qualified to vote at said election," without a 
specification of the names of such persons, was adjudged bad by 
the house. 3 The majority of the committee were of the opinion 
that the irregularities and misconduct of the inspectors, at certain 
polls, warranted the rejection of the entire vote cast at those polls, 
but did not recommend such rejection, because the contestant had 
not specifically demanded it, in his notice of contest. 4 Where there 
was nothing, in the notice of contest, relating to the failure of elec- 
tion officers to take the oath prescribed by law, and the contestee 
objected to all evidence upon that subject, when taken, the com- 
mittee held that the objection was valid. 5 In a contest, conducted 
under the laws of Virginia, which required a notice to be served 

1 Archer v. Allen, 1 Bart. 169. 4 Van Wyck v. Green, 2 Bart. 631. 

2 Varnum's case, C. & H. 112. 5 Barnes v. Adams, id. 760. 

3 lb. 



832 

of any objections to the legality of the election, as well as to 
particular votes, where notice of objection to particular votes 
at a precinct had been given, without any objection to the legality 
of the election itself, the committee held that the proof of such 
illegality could not be admitted. * An averment, in the notice of con- 
test, that certain citizens of New Mexico, who had elected to 
remain Mexican citizens, after the annexation of New Mexico to 
the United States, had unlawfully voted for the sitting member, 
without a designation of such persons by name, was held to be 
sufficient, under the act of February 19, 1851. 3 

§ 1000. Where it was alleged, in the notice of contest, that an 
examination of the tally papers relating to the election, together 
with a recount of all the ballots in the district, would show that 
the sitting member was not elected, and that the contestant was 
elected, and the sitting member objected to the allegation, as an 
insufficient specification, the committee unanimously held that the 
notice was not in conformity with the requirements of the act of 
February 19, 1851, but, to avoid injustice, permitted the contest- 
ant, on the trial, orally to specify twelve grounds on which the 
contest was based. 3 

§ 1001. It has been held by the committee of elections of the 
house of representatives of the United States that evidence ought 
not to be admitted of any fact not substantially averred, 4 that 
the contestant must conform his proof to the allegation of his 
notice, 5 and that a counter claim, not specified in the answer, can- 
not be considered on the trial. 6 The charge that the polls were 
not kept open two hours, if not set forth in the notice of contest, 
cannot be proved on the trial.' 7 But in Massachusetts the com- 
mittee may at the hearing consider objections not stated in the 
petition. 8 Evidence of irregularity in the election, or in the return, 
or ascertainment of the result, will be considered, although not 
expressly alleged in the petition. 9 Under a general allegation 
that the contestant received a plurality of the votes cast, he can 
file specifications before the committee, setting up fraudulent con- 

a Botts v. Jones, 1 Bart. 73. 5 McKenzie v. Braxton, Smith, 19. 

2 Otero v. Gallegos, id. 177. The house 6 Finley v. Walls, id. 367. 
concurred, nem. con. 7 Bichards' case, C. S. & J. 502. 

3 Kline v. Verree, id. 381. 8 Freeman's case, id. 543. 

4 Leib's case, C. & H. 165 ; Stoval v. 9 Stimpson v. Breed, L. & R. 157. 
Cabell, 2 Ells. 667. 



833 

duct on the part of the selectmen of certain towns in the district, 
and claiming that, bj reason thereof, the entire vote of those towns 
should be rejected, so that he would have a plurality of all the 
remaining votes cast in the district. 1 When an election was con- 
troverted, on the ground of a deficiency of ratable polls, the sitting 
members were required to furnish the committee on elections and 
the petitioners with lists of persons, whom they alleged to be 
ratable polls ; and the petitioners were required, within a reason- 
able time thereafter, to furnish lists of such persons as they alleged 
not to be ratable polls. 2 

§ 1002. Regulations for the conduct of the contest and the tak- 
ing of the testimony have been prescribed by the house. 3 Although 
the notice of contest, required by the act of February 19, 1851, is 
a personal notice, yet if, for any reason, personal notice be impos- 
sible, the house having, at all times, control of the matter, can 
provide a suitable remedy. 4 An act of parliament declaring that 
the contestant " shall give, or deliver, notice, in writing, unto such 
deputy, or deputies, as last aforesaid," does not require a personal 
service of the notice of contest on the deputy ; service made by 
leaving the notice with his wife is sufficient. 5 

§ 1003. The statutory provision, prescribing the time within 
which the notice of contest is to be served, is not obligatory upon 
the house of representatives. A mere failure to serve this notice, 
within the period limited by the statute, will not always result in 
the dismissal of the contest, without a trial of the case on its 
merits. The federal constitution does not permit the house to be 
fettered by this statute. 6 Since the enactment of the statute of 
1851 no contest has been dismissed, without a trial on the merits, 
upon the sole ground that the notice was not served within the 
period of thirty days limited in the statute. 

§ 1004. Where the statute required the determination of the 
result of the election to be made within ten days after the first 

1 Palmer w. Howe, L. & K. 145. Hooper, 2 Bart. 211 ; Thomas v. Arnell, 

2 Davis' case, C. S. & J. 73; Parsons' id. 162; Hunt?;. Sheldon, id. 530; Sheafe 
case, id. 103. v. Tillman, id. 907 ; Kline v. Verree, 1 

3 Covode v. Foster, 2 Bart. 600. Bart. 574 ; Chapman v. Ferguson, id. 

4 Follett v. Delano, id. 113. 267 ; Howard v. Cooper, id. 275 ; Val- 
5 Regina v. Deputies, 15 Q. B. 671. landigham v. Campbell, id. 223 ; Bell «. 
6 Williamson v. Sickles, 1 Bart. 289 ; Snyder, Smith, 247. 

Fuller v. Dawson, 2 id. 126 ; McGrorty v. 
53 



834 

day of December, but did not fix any time for giving a certificate 
to the successful candidate, or provide for any other notice of such 
determination, nor prescribe any mode by which the date of such 
determination could be ascertained, it was held, by the committee, 
that the contestant had thirty days, from the last of the ten days 
following December 1, for serving the notice of contest, unless 
knowledge had been brought home to him of a determination made 
at an earlier day. 1 More than one notice of contest may be 
served, under the act of 1851, provided they shall all be served 
within the time required by that act ; and they may be treated as 
one notice, or as supplemental notices ; or the contestant may 
withdraw an insufficient notice and serve a sufficient notice in its 
place. All the act of 1851 contemplates is a fair notice of the 
subject-matter of contest within the time prescribed by the act. 2 
A notice of contest was served before the result of the election had 
been declared by the board of canvassers. The sitting member 
answered, without objecting to the time of such service. It was 
held, by the committee, that the objection was waived. 3 Where 
an agent of the contestant presented, to the sitting member, the 
original notice of contest, and requested an acknowledgment that 
service of the same had been made, at his house, on a previous 
day, which the sitting member declined to give, the committee 
held that this latter action of the contestant's agent would consti- 
tute a valid service, as of the date when it occurred, provided it 
occurred within the period of thirty days prescribed by law for 
the service of notice of contest. 4 

§ 1005. Where the statute required the notice of contest to be 
filed with the county clerk, within forty days after the determina- 
tion of the result, 5 and the notice did not show the date of such 
determination, it was held that an amendment, setting forth the 
date, filed after the expiration of the forty days, related back to 
the commencement of the contest, and was not open to the objec- 
tion that it was filed more than forty days after the result was 
ascertained. 6 The " twenty-one days," 7 limited for filing a petition 
against a parliamentary election, are exclusive of Sundays. 8 Pub- 



1 Follet v. Delano, 2 Bart. 113. 

2 Dailey v. Estabrook, 1 id. 299. 

3 Todd v. Jayne, 1 id. 555. 

4 Follet v. Delano, 2 id. 113. 



5 Code Civ. Proc. Cal. s. 1115. 

c Preston v. Culbertson, 58 Cal. 198. 

7 31 & 32 Vict. c. 125, s. 6, clause 2. 

8 Pegler v. Gurney, 17 W. K. 316. 



835 

lication of notice of a petition contesting an election of represent- 
ative is not necessary, under a statute requiring the publication 
of petitions affecting the rights, or interests, of individuals, or 
private corporations. 1 Chapter eight of the revised statutes of the 
United States, relating to contested elections, has no direct appli- 
cation to a contest between persons claiming under elections held 
on different days, and could only be made applicable by a resolu- 
tion of the house, authorizing such parties to proceed after the 
analogy of the statute, and fixing the time from which the first 
thirty days should begin to run. 2 

§ 1006. Proof of service of the notice of contest by an ex-parte 
affidavit, in order to be admissible, must be authorized by statute, 
or by some rule established by the tribunal before which the testi- 
mony is to be used; and, in the absence of these, an affidavit can- 
not be admitted. 3 

§ 1007. Notices of contest may be amended, by permission of 
the house, which should exercise its discretionary power in such 
a way as may best promote the ends of substantial justice. The 
court will not amend an election petition, by striking out, after 
the lapse of the time limited by the act for presenting it, that 

1 Pease v. Rowell, L. & E,. 108. uniformly adhered to, and was the cor- 

2 Holmes v. Wilson, 1 Ells. 322. In a rect rule. 

case decided in 1817 the committee re- The committee also reported that evi- 

ported that inasmuch as no notice had dence could not be procured in time to 

been given by either party of the names enable the committee to investigate the 

of persons alleged to have voted without qualifications of the electors, that the 

legal qualifications, and neither party law of the territory of Missouri pre- 

had been notified by the other that the scribed no mode of taking testimony in 

particular qualifications of the electors contested elections of delegates, and that 

would be investigated, and the names of there was no authority to compel the 

magistrates, before whom the deposi- attendance of witnesses. They recom- 

tions were to be taken, had not been mended that the committee be dis- 

given, the depositions should all be re- charged from further consideration of 

jected. They stated that the house, the case. 

in the case of Joseph B. Varnum, C. & The house having rejected an amend- 

H. 112, had resolved "that the names ment granting the seat to the contestant 

of the persons objected to for want of resolved that the election had been ille- 

sufficient qualifications ought to be set gaily conducted and that the contested 

forth prior to the taking of the testi- seat was vacant. Easton v. Scott, C. & 

mony;"that this rule was adopted by H. 286, Missouri Territory, 1817. 

the committee in the case of Porterfield 3 Follet v. Delano, 2 Bart. 113 ; Cook 

V. McCoy, C. & H. 267, and had been, v. Cutts, 2 Ells. 243. 
so far as the committee were advised, 



836 

part of the prayer of the petition, which claims the seat for the 
petitioner, and the allegations applying to a scrutiny, which would 
be dependent thereon, inasmuch as this would affect the rights of 
the constituency. 1 A petition against a municipal election haying 
been filed, on the grounds of treating, bribery, and intimidation, 
the petitioner found, on inspection, that the returning officer had 
neglected to insert in the counterfoils of twenty-nine of the voting 
papers, used at the election, the numbers of the voters appearing 
on the burgess-roll, and that certain tendered ballot papers were 
used as ballot papers, and were put into the ballot-box, and after- 
wards counted in favor of the respondent. Thereupon the peti- 
tioner asked leave to amend his petition, by alleging these facts 
as fatal to the election, and it was held that the amendments should 
be allowed. 2 A petition to set aside an election maybe amended. 
The amendment need not be sworn to by the same person who 
swore to the original petition. 3 In a contested election case when 
some of the grounds alleged are for mere irregularities, and, if 
sustained by proof, would not be sufficient cause for setting aside 
the election, the court will strike out such allegations, and will not 
put the respondent to the trouble of taking proof. 4 Objections to 
the sufficiency of the notice of contest are waived by a stipulation 
to take testimony. 5 

§ 1008. The petitioner, or contestant, has been permitted to with- 
draw his petition, or notice of contest, and papers. 6 

§ 1009. Under that provision of the constitution which makes 
the house of representatives the judge of the elections, returns, and 
qualifications of its members, the house may adjudicate the ques- 
tion of right to a seat in either of the four following cases : (1) In 
the case of a contest between a contestant and a returned member 
of the house, instituted in accordance with the provisions of title 
2, chapter 8, of the revised statutes ; (2) in the case of a protest 
by an elector of the district concerned ; (3) in the case of a. protest 
by any other person ; and (4) on the motion of a member of the 
house. The proceeding in the first of these cases is, by the revised 

1 Aldridge v. Hurst, 35 L. T. N. S. 156. 5 Duffy v. Mason, 1 Ells. 361. 

2 Pickering v. Startin, 28 id. 111. 6 Leib's case, C. & H. 166 ; Van Rensse- 

3 Mann v. Cassidy, 1 Brewst. 11. laer v. Van Allen, id. 77. 

4 Kneass' case, 2 Pars. 553. 



837 

statutes, made a proceeding, inter partes — a suit or action in which 
the contestant is plaintiff and the returned representative defend- 
ant. The management of this suit, or action, is by law placed 
in the hands of these parties. They are not only permitted, but 
required, to frame and serve the pleadings which give form to the 
controversy. They are permitted and required to serve upon each 
other the notices, under which the depositions are taken. They 
may stipulate to take depositions without notice. In taking the 
depositions they may appear in person, or by agent, or attorney. 
In a w^ord, notwithstanding the controversy involves interests of a 
public nature, its form and fate are subjected, by the law, to 
the control of these parties. Their acts, omissions, diligence, 
laches, waivers, admissions, and stipulations may, under the law, 
always prove decisive of the contest. As between these parties, 
therefore, the contest provided for in the revised statutes is, in the 
strictest sense, a suit, an action, a litigated case. The allegations, 
made in the pleadings filed by either party, are binding on such 
party, because they are his own allegations, made in a suit to which 
he is a party. The proofs taken according to law in the case are 
legally admissible, as between the contestant and contestee, be- 
cause taken in a suit to which they are parties, subject to the 
right of examination and cross-examination. The stipulations of 
either party are binding upon him, because he has made them. 
His laches conclude him, because incurred by him. In all these 
particulars the relations of the parties to the contest are analogous 
to those of parties to a suit at law or in equity. 

§ 1010. While this is true in respect of the techninal contest 
provided for by the revised statutes, it is not true in respect of 
either of the otjier three cases in which the house of representatives 
is empowered by the constitution to adjudicate the right to a seat. 
A case adjudicated by the house on the protest of an elector, 
or other person, or on the motion of a representative, is not an 
action inter partes. It is a proceeding under the constitution, 
and not under the statute. In that proceeding there is no con- 
testant to serve the notice of contest prescribed by the statute ; 
there are no parties to serve notices to take depositions, or to 
examine or cross-examine witnesses ; no parties who have it in 
their power, by their acts, omissions, stipulations, admissions, 



838 

waivers, or laches, to dispose of the questions and interests 
involved ; no parties into whose hands the law intrusts the fate of 
the controversy. In that proceeding there is no contest, or 
notice of contest, or deposition inter partes, or stipulation inter 
partes, in the sense of the provisions of the revised statutes. To 
that proceeding the provisions of the revised statutes have no 
applicability. These provisions are framed clearly and distinctly 
for actions inter partes. 

§ 1011. When the house undertakes the adjudication of the 
right of a member to his seat, on the protest of an elector, or other 
person, or on the motion of a representative, it does not look to the 
statutes for its rules of procedure ; it prescribes its own rules, in 
the exercise of its unquestionable constitutional power. If it shall 
find any of the rules prescribed by law for technical contests avail- 
able and useful in the case, it will adopt them. Such rules will 
then have force, not because found in the statutes, but because 
adopted by the house. If it shall see fit to hold a newly returned 
representative bound by the allegations, stipulations, depositions, 
waivers, or laches, of a deceased contestee, it will have the power 
so to do ; but the obligation will then result, not from the acts of 
the new claimant, but from the order of the house of representa- 
tives. 

§ 1012. But this constitutional power of the house to prescribe 
the rules for such adjudication is not to be arbitrarily exercised 
by the house. Like every other constitutional power of the house, 
it is to be exercised in subordination to those principles of justice 
which lie at the roots of the constitution and send their influences 
through all its provisions. In an adjudication made on the protest 
of an elector, or other person, or on a motion of a representative, 
the house has no right, except in cases of urgent necessity, to pre- 
scribe any rules which shall bind the sitting member by pleadings 
or averments which he never made, by the testimony of witnesses 
whom he never had an opportunity to examine or cross-examine, 
by stipulations, or admissions, or waivers which he never made, 
or by laches which he never incurred. The house has no right 
unnecessarily to make the title of a representative to his seat to 
depend upon acts, omissions, diligence or laches of others. 

§ 1013. The contestee may, in his answer, deny all, or any, of 
the allegations made by the contestant, in his petition, or notice, 



839 



and may also set up any new matter constituting a defence to the 
whole or any part of the case of the contestant. 1 



1 The following is a convenient form 
of the answer to the notice of contest : 
Kenosha, Wisconsin, 

December 14, 1870. 
Hon. Edward H. Gaylord, 

Milwaukee, Wisconsin. 
Sir : I respectfully submit the follow- 
iug answer to your notice contesting my 
right to occupy a seat in the house of 
representatives of the United States, as 
the representative of the first congres- 
sional district of the state of Wisconsin, 
in the forty-second congress : 

1. I deny each and all the allegations 
of fact set forth in the first, second, 
third, fifth, sixth, seventh, eighth, tenth, 
twelfth, thirteenth, fifteenth, sixteenth, 
seventeenth, nineteenth, twentieth, twen- 
ty-third, and twenty- fourth specifica- 
tions of your notice of contest. 

2. I admit the allegations set forth in 
the fourth, ninth,fourteenth, and twenty- 
first specifications. 

3. I admit that, at the precinct of Elk- 
horn, in the county of Walworth, nine- 
teen votes were cast for me, by persons 
who had not been registered, as alleged 
in the eleventh specification of your 
notice of contest, but I aver that they 
were sworn, by one of the officers of 
election, as to their right to be register- 
ed and to vote, according to law, before 
their votes were received, and, upon their 
oaths, established their right to be reg- 
istered and to vote. 

4. I admit that three votes were cast 
for me at the precinct of Oak Creek, in 
the county of Milwaukee, by persons 
who had been convicted of forgery 
in said state, and imprisoned, there- 
for, in the penitentiary of said state, 
as alleged in the eighteenth specification 
of your notice of contest. But I aver 
that, before the said election, each of 
said three voters had been pardoned by 
the governor of said state, for his said 
offence. 



5. I admit that, after the polls were 
closed and before the votes were can- 
vassed, at the precinct of Oconomowoc, 
in the county of Waukesha, the ballot- 
box was left for an hour, unsealed in a 
dram shop, in the custody of drunken 
and disreputable persons, who were not 
officers of the election, as alleged in 
your twenty-second specification. But 
I aver, and will prove, that while said 
ballot-box was in the custody of those 
unknown persons, it was not opened, 
nor tampered with x by the removal, or 
insertion, of ballots, or otherwise, and 
that said ballot-box, and all the ballots 
therein contained, were returned to the 
judges in precisely the same condition 
in which they were received. 

6. I aver that at the precinct of 
Eagle, in the county of Waukesha, the 
officers of election fraudulently and sur- 
reptitiously deposited, in the ballot- 
box, a large number of ballots not re- 
ceived by them from the hands of 
voters, and these fraudulent ballots were 
all canvassed "by the precinct, county, 
and state canvassers ; that the return 
of the precinct gave you one hundred 
and eighty-seven votes, and gave me 
sixty-four ; and, in view of this fraudu- 
lent misconduct of the officers of elec- 
tion, I demand the rejection of the 
return of this precinct as incompetent 
evidence of the result of the election 
there held. 

7. I aver that, at the precinct of 
Whitewater, in the county of Walworth, 
twenty-seven laboring men, who were 
legally qualified voters of the precinct, 
appeared at the polls, and tendered 
their ballots to the officers of election ; 
that the officers of election, conspiring 
together to prevent said persons from 
voting, consumed all the time until the 
close of the polls, in frivolous proceed- 
ings, and did not permit either of said 
twenty-seven electors to vote, although 



840 



§ 1014. In the adjudication of a contested election case, under 
that clause of the constitution which makes each house " the judge 
of the elections, returns, and qualifications of its own members," 
the senate and house of representatives act as judicial tribunals. 
And the general principle that every question in issue, settled by 
the final judgment of a judicial tribunal, becomes res judicata, as 
between the parties thereto, applies to judgments of the senate 



all of them could easily have voted, 
if the officers of election had not, by 
their fraudulent misconduct, prevented 
it. In view of the fraudulent conspiracy 
of these officers of election, I shall in- 
sist that the return of this precinct, 
which gave you one hundred and ninety- 
seven votes, and gave me thirty-one 
votes, cannot be received as evidence 
of the result of the election at that pre- 
cinct. 

8. I aver that at the precinct of 
Dover, in the county of Racine, John 
Wilson, one of the three duly appointed 
judges of election, attended, at the place 
designated by law for holding the elec- 
tion, an hour before the time fixed by 
law for opening the polls, and then and 
there, with four persons chosen by the 
by-standers as judges and clerks of the 
election, opened the polls and pro- 
ceeded to hold an election, which con- 
tinued until the hour designated by law 
for closing the polls ; that more than 
twenty ballots were received and depos- 
ited in the ballot-box, at these polls, 
before the time fixed by law for the 
opening of the polls had arrived ; that 
at the time fixed by law for opening the 
polls, Benjamin F. Allen and Stephen 
C. Jennings, two of the three duly ap- 
pointed judges of the election for this 
precinct, appeared, with James Mont- 
gomery and Albert F. White, the duly 
appointed clerks, and opened the polls 
and held an election, according to law, 
at which you received sixty-nine, and I 
two hundred and ten, lawful votes ; 
that the precinct return of said last- 
named officers of election was rejected 



by the county canvassers, and that of 
said John Wilson and his associates ac- 
cepted, giving you one hundred and 
twenty-nine votes and giving me none ; 
and that the votes so returned, by said 
Wilson and his associates, were em- 
braced in the state canvass. I shall 
demand that the votes received at the 
polls opened, at the time designated by 
law, be canvassed, and those shown in 
said illegal return excluded. 

9. I aver that the registration list of 
the precinct of St. Francis, in the county 
of Milwaukee, was not prepared in the 
manner prescribed by law ; that the 
names thereon were, with few excep- 
tions, copied by James B. Wright, the 
chairman of the board of registration, 
and a saloon keeper, directly from his 
account book, with the knowledge of 
the other members of the board ; and 
that, with full knowledge that this reg- 
istration list had been so prepared, the 
officers of election accepted it, and 
acted upon it throughout the election. 
In view of this fraudulent misconduct 
of said officers of election, I shall insist 
that the return of this precinct, which 
has been canvassed by the county and 
state board of canvassers, is not lawful 
proof of the result of the election, at 
that precinct. 

10. I aver that you have not been 
seven years a citizen of the United 
States. 

11. I aver that you are not twenty- 
five years of age. 

Very respectfully, 

HENRY C. BLACKMER. 



841 

and house of representatives in contested election cases. Inas- 
much as the senate and house of representatives have no set forms 
for their judicial decisions, the nature and scope of an adjudication 
will be determined, not by the mere form of the judgment, but by 
the whole record of the case. No power outside of the body itself 
could impose any forms or rules upon the senate or house which 
would be obligatory in such cases. No attempt has been made in 
any quarter to do so. And while the words in which they declare 
their decision may be prima-facie evidence, they are not conclu- 
sive evidence of the nature and extent of the adjudication. The 
nature and extent of such adjudication are facts which they will 
ascertain or recognize precisely as they will ascertain or recognize 
other facts. If, at the close of a trial of a cause upon its merits, 
the senate or house dispose of it, by a vote to admit one of the 
claimants to the contested seat, with no right of further contest 
saved to the other, there will be just as complete an adjudication 
of the cause as if the resolution should set forth, in detail, all the 
propositions asserted, controverted, and decided, together with all 
the evidence and arguments adduced in support thereof, or in 
opposition thereto. 

§ 1015. The peculiar constitution of the British house of lords 
excludes from that body such contested election cases as arise in 
the senate of the United States. But, nevertheless, the house of 
lords is vested with judicial as well as legislative powers, and in 
the exercise of its judicial powers observes the same rule as to the 
finality of its judgments which obtains in the senate of the United 
States. 1 In no instance has the house of commons of England 
ever entertained jurisdiction of a contested election case which 
had been once decided on its merits. 3 Judicial tribunals of last 
resort will not rehear a cause, after final judgment, on the applica- 
tion of a party, but only on a motion to reconsider, made by a mem- 
ber of the tribunal who concurred in the decision ; nor even in 
such a case after the expiration of the term at which the judg- 
ment is rendered. And this principle applies to decisions made 
by the senate and house of representatives in contested election 
cases. The grounds of the refusal of judicial tribunals of last 
resort to rehear causes, after final judgment, on the application of 

1 Stewart v. Agnew, 1 Shaw's Scotch 2 Luders, 452 ; Chambers, 350. 

Appeal Cases, 413. 



84:2 

parties, are set forth in decisions of the supreme court of the 
United States and of the house of lords of England. In one case, 
the supreme court of the United States said : "A final judgment 
of this court is supposed to be conclusive upon the rights which 
it decides, and no statute has provided any process by. which this 
court can revise its own judgments. In several cases, which have 
been formerly adjudged in this court, the same point was argued 
by counsel and expressly overruled. It was solemnly held that a 
final judgment of this court was conclusive upon the parties, and 
could not be re-examined." 1 In a later case the same court said : 
" No reargument will be heard, in any case, after judgment is 
entered, unless some member of the court, who concurred in the 
judgment, afterwards doubts the correctness of his opinion, and 
desires a further argument on the subject. And, when that hap- 
pens, the court will, of its own accord, apprise the counsel of its 
wishes, and designate the points on which it desires to hear 
them." 3 And, in a still later case, the same court said : " We do 
not doubt the power of the court to open the judgment it has 
rendered, at the present term, and continue, or rehear the case if, 
upon the record before us, any one of the judges who concurred 
in the decision, had since seen cause to doubt its correctness. 
But, in the absence of any such doubt, the motion of the appellee 
is overruled." 3 

1 Martin v. Hunter's Lessees, 1 Wheat. wrong, it wpuld be infinitely more mis- 
355. chievous, in its consequences, to permit 

2 Brown v. Apsden, 14 How 25. this proceeding to take place, than to 

3 United States?). Knight's Administra- suffer your wrong judgment to remain 
tors, 1 Black, 227, 490. unaltered. It is a judgment upon the 

On an application for a rehearing, in the merits. If a judgment can be reviewed 

house of lords, Lord Elden said : " We in the manner in which it is sought to be 

have heard of no such thing since the reviewed in this case, I wish to know 

union." His opinion was that the house when there would bean end of litiga- 

could not rehear the cause, whether the tion. I take it to be, generally speaking, 

judgment was right or wrong. Lord a principle (with the single exception I 

Bedesdale said : " In consequence of the have before noticed) that when a final 

petition I have looked, with the utmost judgment is pronounced, by a court of 

care and attention, to all the cases, in competent jurisdiction, that court has 
which it has been suggested that the . no right to alter its judgment ; and it 

house has done anything in the matter cannot be altered except by a writ of 

of a review of its former proceedings." error to a superior court. If the deci- 

Having discussed these cases at length, sions of this house, acting as a court of 

he added : " Now it seems to me that if ultimate resort, are subject to this sort 

I were convinced your judgment was of review, where is to be the end of liti- 



843 

§ 1016. Upon the final adjudication of a contested election case, 
by the senate, or house, the jurisdiction of the committee over the 
case ipso facto terminates, whatever formal ceremonies may, or 
may not, attend the termination of that jurisdiction. The com- 
mittee has no power, except as the agent and representative of the 
senate, or house. 

§ 1017. On the twentieth of May, 1876, Mr. Morton submitted 
to the senate of the United States a report of the committee on 
privileges and elections in these words : " The question whether 
Mr. Spencer was elected by the lawful legislature of Alabama, 
raised in the memorial referred to and in the specifications filed 
before the committee, by the counsel, Mr. Morgan, who represented 
the state of Alabama, was considered by a majority of the com- 
mittee to have been fully settled in the contest for the seat occupied 
by Mr. Spencer, before made, in the senate by Mr. Sykes. The 
question in that contest was, whether what was known as the court- 
house legislature, by which Mr. Spencer was elected, or the capitol 
legislature, by which Mr. Sykes was elected, was the lawful legisla- 
ture of Alabama. After full consideration and argument of counsel, 
it was determined by the committee, and afterwards by the senate, 
that the court-house legislature was the lawful one, and that Mr. 
Spencer, and not Mr. Sykes, was entitled to the seat. The ques- 
tion having been definitely settled, it was considered by the com- 
mittee that it was not competent for the committee or the senate 
to reopen it, and that it must be treated as res judicata." The 
senate refused to adjudicate the questions presented in the memorial 
of the legislature of Alabama, because the same questions had 
already been determined in the case of Sykes v. Spencer. 1 

§ 1018. At the first session of the thirty-fifth congress, protests 
against the election of senators Bright and Fitch, of Indiana, were 
referred to the committee on the judiciary, which then had juris- 
diction of 'cases of contested elections. These protests were signed 

gation, upon this subject ?" Stewart v. resorts, and not of dernier resort — a 

Agnew, 1 Shaw's Scotch Appeal Cases, house of many applications, and not of 

413. final judgments ; and the celebrated 

In the Irish parliament an application Latin epigram upon the tediousness and 

for a rehearing was made in the case of uncertainty of the Aulic council at 

Magrath v. Muskerry. The rehearing Spires might then be written over the 

was refused. Lord Mountmorris said front of it, namely, " Lites ibi spirant, 

that if such rehearings were permitted, sed nunquam expirant. v 

the house would be a house of plusieurs a Spencer's case, Taft, 577. 



844 

by twenty-seven state senators and thirty -five representatives, who 
insisted that, in the absence of any law, joint resolution, or other 
regulation for holding a joint convention, it was not competent 
for a minority of the members of the senate of Indiana to meet 
with a majority, being less than a quorum, of the representatives, 
and elect United States senators. The committee reported the 
following resolution : " Resolved, That Graham N. Fitch and Jesse 
D. Bright, senators returned and admitted from the state of Indi- 
ana, are entitled to the seats which they now hold in the senate 
as such senators aforesaid, the former until the fourth of March, 
1861, and the latter until the fourth of March, 1863, according to 
the tenor of their respective credentials." This resolution was, 
after full consideration and debate, adopted by the senate. At 
the second session of the thirty -fifth congress a document described 
as a " memorial of the state of Indiana, by her representatives and 
senators in general convention assembled, representing that it was 
her wish and desire that the Hon. Henry S. Lane and the Hon. 
William Monroe McCarty be admitted to seats in the senate of the 
United States, as the only legally elected and constitutionally 
chosen senators of that state," was presented to the senate and 
referred to the committee on the judiciary. The committee, in 
their report, submitted February 3, 1859, say : " The resolution was 
under consideration in the senate and fully debated at several 
subsequent times, and was finally, after the rejection of several 
proposed amendments, passed by the senate, without amendment 
or alteration. In the opinion of the committee, this resolution (no 
motion having been made to reconsider it) finally disposed of all 
questions presented to the senate involving the respective rights 
of the Hon. Graham N. Fitch and Hon. Jesse D. Bright to their 
seats in the senate, as senators from the state of Indiana, for the 
terms stated in the resolution. It appears by the memorial that 
the legislature of Indiana, at its recent session in December last, 
assumed the power of revising the final decision thus made by the 
senate of the United States under its unquestioned and undoubted 
constitutional authority to be the judge of the qualifications of its 
own members. Under this assumption, it also appears, by the 
journals of the senate and house of representatives of the state of 
Indiana, that the legislature of Indiana, treating the seats of the 
senators from that state as vacant, proceeded, subsequently, by a 



845 

concurrent vote of the senate and house of representatives of the 
state, to elect the Honorable Henry S. Lane as a senator of the 
United States for the state of Indiana, to serve as such until the 
fourth of March, 1863, and the Honorable William Monroe Mc- 
Carty as a senator for the same state, to serve as such until the 
fourth of March, A. D. 1861. Under this action of the legislature 
of Indiana, those gentlemen now claim their seats in the senate of 
the United States. It may be conceded that the election would 
have been valid, and the claimants entitled to their seats, had the 
legislature of Indiana possessed the authority to revise the decision 
of the senate of the United States, that Messrs. Fitch and Bright 
had been duly elected senators from Indiana, the former until the 
fourth of March, 1861, and the latter until the fourth of March, 
1863. In the opinion of the committee, however, no such author- 
ity existed in the legislature of Indiana. There was no vacancy 
in the representation of that state in the senate ; and the decision 
of the senate, made on the twelfth of June, 1858, established 
finally and (in the absence of a motion to reconsider) irreversibly 
the right of the Hon. Graham N. Fitch as a senator of the state 
of Indiana until the fourth of March, 1861, and the right of the 
Hon. Jesse D. Bright as a senator from the same state until the 
fourth of March, A. D. 1863. 

" The decision was made by an authority having exclusive juris- 
diction of the subject ; was judicial in its nature ; and being made 
on a contest, in which all the facts and questions of law involving 
the validity of the election of Messrs. Fitch and Bright, and their 
respective rights to their seats, were as fully known and presented 
to the senate as they are now in the memorial of the legislature of 
Indiana, the judgment of the senate then rendered is final, and 
precludes further inquiry into the subject to which it relates." 1 

1 Bright and Fitch, cases of, Taft, 164. do justice to itself as to the states repre- 

A minority of the committee submitted sented, or to the persons claiming or 

., . . ,, £ n n holding seats. Such an abiding power 

their views in the following words : *.-*.*. t.-u *u a £ • 

& must exist, to purge the body from m- 

" The power of the senate to judge of truders, otherwise any one might retain 

the election and qualifications of its own his seat who had once wrongly procured 

members is unlimited and abiding. It a decision of the senate in his favor by 

is not exhausted in any particular case by fraud and falsehood, or even by papers 

once adjudicating the same, as the power forged or fabricated. In what cases and 

of re-examination and the correction of at whose application a rehearing will at 

error or mistake incident to all judicial all times be granted, is not now necessary 

tribunals and proceedings remains with to inquire • but when new parties, with 

the senate in this respect, as well as to apparently legal claim, apply, and espe- 



84:6 



§ 1019. In the cases from the state of Mississippi, in the house 
of representatives of the twenty-fifth congress, the power to re- 
examine a decision made on an election of members was fully con- 
sidered and decided. Gholson and Claiborne were, at a special 
election, held on the proclamation of the governor, chosen repre- 
sentatives from that state to a special session of congress called by 
the president. After some objection, they were admitted to their 
seats, in October, 1837. In November following, an election was 
held in said state, and Prentiss and Word were elected members 
of the twenty-fifth congress. In December following, they pre- 
sented their credentials, and claimed their seats. It was then 
insisted that the decision previously made was conclusive of the 
right of Claiborne and Gholson to their seats as members of the 



cially when a sovereign state, by its legis- 
lature, makes respectful application to 
be represented by persons in the senate 
legally elected, and insists that the sit- 
ting members from that state were never 
legally chosen, we consider that the sub- 
ject should be fully re-examined, and that- 
neither the state, the legislature, nor the 
persons now claiming seats can legally or 
justly be estopped, or even prejudiced, 
by any former proceedings of the senate, 
to which they were not parties." 

The reasoning of the senators who 
concurred in the views of the minority of 
the committee in the cases of Bright and 
Fitch involves the following fallacies : 
They, in effect, deny that any question 
ever becomes res judicata in any tribunal. 
For if the power of the senate to adjudi- 
cate a contested election case is what 
they characterize it, an " abiding" pow- 
er, so, also, is the power of any other 
judicial tribunal to adjudicate any cause 
an "abiding" power, and there is no 
end of litigation anywhere. They con- 
found the power of the court to correct 
its own errors before judgment, with its 
power to reverse the judgment after its 
rendition. They confound the rehearing 
of an adjudicated case, by the senate or 
other judicial tribunal of last resort, with 
a new trial in a nisi prius court, and they 
transfer from the "new trial," at nisi 
prius, reasons, which are valid there, to 
the " rehearing " in a court of last resort, 



where they have neither validity nor 
applicability. They confound the power 
of the senate to protect itself against 
false and fraudulent intruders by expul- 
sion, with the power to judge of the 
elections, qualifications, and returns of 
its members. But these powers are not 
to be confounded. They originate in 
distinct clauses of the constitution. The 
purposes of their creation are wholly 
different. The power to judge of the 
elections, returns, and qualifications of 
members of the senate is exercised by a 
majority vote, and ends when once exer- 
cised. But the power to expel a member 
can only be exercised by a two-thirds' 
vote, and the senate may entertain a 
proposition for expulsion as often as a 
case for expulsion shall arise. This 
power of expulsion secures to the senate 
complete protection against false and 
fraudulent intruders, even though they 
have passed the ordeal of a contested 
election. And finally the minority con- 
found the case of a reconsideration by 
the senate, or any other judicial tribunal 
of last resort, on a motion, made in due 
time, by a member who concurred in the 
judgment, with the case of a new trial, 
in a nisi prius court, granted on an ap- 
plication made by a party, and predicated 
upon the grounds upon which new trials 
are legally granted. 



847 



twenty -fifth congress, and that the whole matter was res judicata. 
But on full examination, and after full discussion, the former reso- 
lution declaring Claiborne and Gholson duly elected members of 
the twenty -fifth congress was rescinded. * 



1 Claiborne and Gholson, cases of, 1 
Bart. 9. 

The first session of the twenty-fifth 
congress was an extraordinary session, 
convoked by the president, and com- 
menced on the first Monday in Septem- 
ber, 1837. Under the statute then in 
force, representatives in congress from 
the state of Mississippi were chosen bien- 
nially, on the first Monday of November, 
and the day following, in the year in 
which their term of office commenced. 
No representatives, therefore, had been 
or could have been chosen, under the 
statute, for the twenty-fifth congress be- 
fore the commencement of the special 
session. But, while it is provided in the 
constitution that " the times, places, and 
manner of holding elections for senators 
and representatives shall be prescribed 
in each state by the legislature thereof," 
it is also provided that " when vacancies 
happen in the representation from any 
state, the executive authority thereof 
shall issue writs of election to fill such 
vacancies." 

Accordingly, the governor of the state 
of Mississippi, assuming that a vacancy 
had happened, within the meaning of 
this latter clause of the constitution, 
issued his writ for a special election, 
to be held on the first Monday in July, 
1837, and on the day following. But his 
writ set forth that a vacancy had oc- 
curred in the representation of the state, 
in the term of service of the persons who 
had represented the state in the twenty- 
fourth congress, and authorized and re- 
quired the special election to be held 
" for two representatives to congress, to 
fill said vacancies until superseded by 
the members to be elected at the next 
regular election, on the first Monday, and 
day following, in November." Messrs. 



Claiborne and Gholson, who had repre- 
sented the state of Mississippi in the 
twenty-fourth congress, were chosen at 
the special election by large majorities. 
When congress assembled in September, 
these members elect, although their seats 
were not contested, invited a scrutiny by 
the house into their right ; and the case 
was referred to the committee of elec- 
tions. On the eighteenth of September 
it was, on motion of Mr. Gholson, re- 
solved that the committee of elections 
be instructed to report upon the certifi- 
cate of election of Messrs. Claiborne and 
Gholson, the members elect from Mis- 
sissippi, whether they are members of the 
twenty-fifth congress or not ; and, that 
said committee take into their considera- 
tion the proclamation of his excellency 
Charles Lynch, governor of said state, 
and the writ of election issued in ac- 
cordance with said proclamation on the 
thirteenth day of June, 1837 ; and also 
the act of the legislature of the state of 
Mississippi, entitled " an act to regu- 
late elections," approved March 2, 1833. 
The case presented two questions : 
First, whether such a vacancy had hap- 
pened as, in the sense of the constitution, 
authorized the governor to issue his writ 
for a special election ; and secondly, 
whether the representatives elect were 
chosen for the entire twenty-fifth con- 
gress, or only for the period ending at 
the regular election in November. The 
decision of the first of these questions was 
necessarily involved in the decision of 
the question whether Messrs. Claiborne 
and Gholson were entitled to hold their 
seats during the special session. But, 
although the question respecting the 
duration of their term of office was one 
which would require a decision sooner 
or later, before the end of the twenty- 



84:8 

I 

§ 1020. In the case of Corbin v. Butler, decided in 1878, the 
committee seem to have been unanimously of the opinion that the 



fifth congress, it did not necessarily re- 
quire a decision at the special session. 
The committee decided that such a 
vacancy as authorized a writ for a 
special election had happened, and 
that, notwithstanding the members elect 
were chosen to fill a vacancy, under 
the constitutional provision relating to 
that subject, and notwithstanding the 
phraseology of the governor's writ, their 
term of office would not expire until 
the end of the twenty-fifth congress. 
On the latter point the committee, in 
their report, said : 

' ' The committee are (with one excep- 
tion) of opinion that in attempting to 
restrict the term of service of the mem- 
bers to be elected at the special session, 
ordered as before stated, till the regular 
election in November next, the governor 
transcended his powers. The gentlemen 
elected are members for the whole unex- 
pired term of the twenty-fifth congress, 
or they are not members at all. The 
question then recurs — Did that illegal 
and restricting clause in the writ invali- 
date the election ? The committee were 
almost unanimous in the opinion that in- 
asmuch as the writ was perfect in itself 
without that clause, its being there does 
not invalidate the election held under it, 
but may fairly be rejected as surplusage. 
Reject this as surplusage, then the writ 
is good, and the objection amounts to 
nothing " 

The resolution which the committee 
reported was in these words : " Resolved, 
That Samuel J. Gholson and John F. H. 
Claiborne are duly elected members of 
the twenty-fifth congress, and, as such, 
are entitled to their seats." This resolu- 
tion was adopted by a vote of 118 to 101. 
The members of the house differed 
mainly, if not wholly, on the question as 
to the duration of the terms of these 
Mississippi representatives. In the course 
of the debate Mr. Legare, of South Caro- 
lina, contended that if Messrs. Gholson 
and Claiborne were elected at all, they 
were elected members for the entire 



term of two years. Mr. Adams, of Mass- 
achusetts, said : The question was not 
whether the vacancy had been filled, but 
whether it had been filled for the 
whole term of the twenty-fifth congress. 
The law of the state of Mississippi made 
it clear that, although the governor had 
a right to issue his writ to fill the va- 
cancy, the members elected could only 
hold office until superseded by the gen- 
eral November election. He had no right 
to issue his writ for an election for the 
whole term, as was evident from the 
words " until superseded," &c, which 
were inserted in the writ. These words 
had been inserted in conformity with the 
laws of that state ; and had they been 
omitted, the governor would virtually 
have repealed the state law. But it might 
be taken for granted that a large portion 
of the people at the polls believed they 
were electing members for the whole 
term. He believed that these members 
could not retain their seats after Novem- 
ber 1, unless re-elected at the general 
election ; but, as they were there, he 
wished them to remain until the expira- 
tion of the special session, and then re- 
turn home, when they would, without 
doubt, be again chosen by the people. 

At the December session of the twenty- 
fifth congress, S. S. Prentiss, and T. J. 
"Word appeared as representatives of the 
state of Mississippi, claiming to have 
been elected at the November election. 
Their memorial was referred to the com- 
mittee of elections. On the twelfth of 
January, 1838, the committee submitted 
their report. On the thirty-first of the 
same month, after prolonged debate, the 
house, by a vote of 119 to 112, adopted 
the following resolution: "Resolved, That 
the resolution of this house of the third 
of October last, declaring that Samuel J. 
Gholson and John F. H. Claiborne were 
duly elected members of the twenty-fifth 



849 

final judgment of the senate, upon the merits of a contested elec- 
tion case, could not be opened, except on a motion to reconsider 
made under the rules ; but a majority of the committee concluded 
that there had been no final judgment in the case under considera- 
tion. The senate, however, did not adopt the report of the 
majority of the committee, but affirmed the title of Mr. Butler to 
the contested seat. 1 

§ 1021. The same general rules of evidence by which courts 
of law are governed, are observed in the investigation of cases of 
controverted elections ; but the legal rules of evidence are usually 
applied by election committees more according to their spirit than 
with the technical strictness observed by the ordinary judicial tri- 
bunals. 3 A failure to reduce the deposition to writing, in presence 
of the officer, before whom it is taken, will justify the exclusion 
of the deposition by the house ; but the house, exercising the 
power conferred by the constitution, may, in its discretion, dis- 
regard the irregularity and receive the deposition. The statutory 
provision is that " the officer shall cause the testimony of the wit- 
nesses, together with the questions proposed by the parlies, or 
their agents, to be reduced to writing, in his presence, and in the 
presence of the parties, or their agents, if attending, and to be duly 
attested by the witnesses, respectively." It is provided in the 
judiciary act of 1789 that " every person deposing, as aforesaid, 
shall be carefully examined and cautioned and sworn, or aflirmed, 
to testify the whole truth, and shall subscribe the testimony by 
him or her given, after the same shall be reduced to writing, which 

congress, be rescinded, and that Messrs. from oue side to the other sufficed to 
Gholson and Claiborne are not duly pass the resolution. They believed Messrs. 
elected members of the twenty-fifth Claiborne and Gholson to have been the 
congress." On the 3d of February, the lawful representatives of the state, until 
house decided, by a vote of 118 to 116, the November election, but held that 
that Messrs. Prentiss and Word, the con- their terms expired at the date of that 
testants, were not entitled to seats in the election. They regarded the adoption 
house, and the governor of Mississippi of the resolution of October 3, as an ad- 
was notified that the seats were vacant. judication of the right of these claimants 
Of the 118 representatives who had voted to seats during the special session, but 
in favor of the report of the committee not as an adjudication of their right to 
in October, four changed their votes in seats for the entire congress. 
•January, and supported the resolution l Corbin v. Butler, Taft, 582. 
unseating Messrs. Claiborne and G-hol- 2 Cushing, s. 210. 
son, and the transfer of those four votes 
54 



850 

shall be done only by the magistrate taking the deposition, or by 
the deponent in his presence." The provision that the deposition 
shall be reduced to writing, in the presence of the officer, being 
common to both of these statutes, it is obvious that the decisions 
of the federal courts, relating to this provision in the judiciary act, 
will be legitimate precedents for the house, in cases arising under 
the corresponding provision of the statute relating to contested 
elections. These decisions exclude depositions not reduced to 
writing in presence of the officer who takes them. 1 Depositions 
were excluded by the house for this reason, among others, that 
they were not written out in the presence of the magistrate, 2 and 
by the committee because they were taken without notice. 3 Parties 
to contested election cases cannot impeach their own witnesses. 4 
At a time when there was no law in force regulating the manner 
of taking depositions in contested election cases, depositions taken 
by the contestant, on reasonable notice to the sitting member, who 
refused to attend on the ground that the proceeding was illegal, 
were admitted by the committee and the house. 5 It was held 
proper to admit depositions, which, in the absence of any law of 
the United States prescribing the mode of taking testimony in 
contested election cases, were taken according to the mode pre- 
scribed by the laws of Virginia for contests in the state legislature, 
in pursuance of regular and sufficient notice, before persons who 
were authorized by law to administer oaths, and were appointed 
commissioners to take the testimony in the mode prescribed for 
contested cases in the state legislature. 6 In cases tried in 1793 
and 1797 the committee of elections prescribed the mode of taking 
evidence. 7 

^ell ». Morrison, 1 Pet. 351: Ed- bourne, 6 Cal. 559 ; Stone v. Stilwell, 23 

mundson v. Barrett, 2 Crancb, C. C Ark. 444. 

228 ; Pettibone v. Derringer, 4 Wasb. 2 Jackson v. Wayne, C. & H. 58. 

215 ; Eaynor v. Haynes, Henipst. 689 ; 3 Spaulding v. Meade, id. 158. 

Cook v. Burnley, 11 Wall. 659; Baylis 4 Griffin v. Wall, 32 Ala. 149. 

v. Cocbran, 2 Jobns. (N. Y.) 416 ; Sum- 5 Turner «. Baylies, 0. & H. 234. But 

mers v. McKim, 12 S. & B. 404 ; United see McFarland v. Culpepper, id. 222. 

States v. Smitb, 4 Day, 121 ; Eailroad * 6 Loyall v. Newton, id. 520. Tbe 

Co. v. Drew, 3 Woods, C. C. 692 ; Beale committee reported in favor of tbe con- 

v. Tbompson, 8 Crancb, 70 ; Sbankriker testant, wbo was admitted by a Vote of 

«.. Beading, 4 McL. 240 ; United States 97 to 84. 

v. Price, 2 Wasb. C. C. 356 ; Hunt v. 7 Latimer v. Patton, C. & H. 69 ; Butb- 

Larpin, 21 Iowa, 484 ; Williams v. Cbad- erford v. Morgan, id. 118. 



851 

§ 1022. It was provided, in the act of 1851, that all testimony 
should be taken within sixty days after the service of the answer. 
In the act of 1873, it is provided that " the contestant shall take 
testimony, during the first forty days, the returned member during 
the succeeding forty days, and the contestant may take testimony, 
in rebuttal only, during the remaining ten days of said period." 
The effect of these statutory provisions, as to which different 
opinions have been entertained in the house of representatives, 
has not yet been finally determined. According to one view neither 
of these provisions ever had the force of a statute. The subject, 
which they affect to regulate, is within the exclusive jurisdiction 
of the house of representatives. Neither the president, nor senate, 
can exercise any constitutional power over it. The vote of the 
senate and the approval of the president wholly fail to impart any 
validity to the measure. Nor can the house of 1851 or of 1873 
bind any subsequent house. The house, in existence for the time 
being, is always the sole judge of the elections, returns, and quali- 
fications of its members. If, in its discretion, it shall hold parties 
to a strict observance of the act of 1873, so far as the taking of 
testimony is concerned, it will do so not because that act is a valid 
statute, but because the house, having exclusive control of the sub- 
ject, can adopt any rule, or regulation, which it may deem proper. 
The whole subject lies within the discretion of the house, which 
may use whatever evidence it sees fit to use, and exclude whatever 
it sees fit to exclude. It is not constitutionally bound by any 
statutes, nor by any unwritten law of the courts. Its power is 
absolute. And yet it has no more right, in the moral aspects of 
the case, to exercise this power, in an arbitrary, unjust, or oppres- 
sive manner, than an individual has so to exercise power possessed 
under the law, but is bound presumptively, though not conclusively, 
to observe the written law of congress, as also the unwritten law 
of the courts, in the taking and use of proof, in cases of contested 
elections. 

According to the opposite view the power of the house of 
representatives to judge of the elections, returns, and qualifica- 
tions of its members, or in other words to adjudicate contested 
elections of its own members, does not involve the exclusive power 
to make rules for taking the proofs, on which the adjudications 
are to be based, any more than does the power of an ordinary 



852 

judicial tribunal to adjudicate ordinary cases, at law, or in equity, 
involve the exclusive power to make rules for taking the proofs 
in such cases. The power to make rules for taking testimony, in 
contested election cases, is not conferred upon the house. But 
such rules are necessary and proper for carrying into effect the 
power conferred upon the house to judge of the elections, returns, 
and qualifications of its members, and, therefore, the power to 
make the rules is vested in congress, by the last clause of the 
eighth section of the first article of the constitution, which confers 
upon congress the power " to make all laws which shall be neces- 
sary and proper for carrying into execution the foregoing powers, 
and all other powers vested by this constitution in the government 
of the United States, or in any department or officer thereof." In 
practice the house ordinarily adheres to the rule for taking testi- 
mony prescribed in the act of 1873. 

§ 1023. Testimony in chief, taken by the contestant in the ab- 
sence of the contestee, during the time appointed by law for taking 
testimony in rebuttal, will not be received by the committee of 
elections of the house of representatives of the United States. 1 
In the absence of statutory provisions for taking testimony, in 
contested election cases, it is not incumbent on the sitting mem- 
ber to commence taking testimony until after the contestant has 
commenced. 2 Testimony taken by the contestant, after the ex- 
piration of the time allowed to him, by law, for taking proof, and 
against the protest of the contestee, was excluded by the commit- 
tee. 3 The time within which the contestant may take testimony 
in chief, in cases of contested seats in the house of representa- 
tives, commences from the date of the service of the contestee's 
answer upon the contestant. 4 A contest was dismissed on the 
ground that the testimony was not taken in time. 5 

§ 1024. The sitting member objected to the testimony taken by 
the contestant, in a case pending in the house of representatives of 
the United States, on the ground that it was not taken within the 
period, limited for that purpose, in contested elections of members 
of the general assembly of the commonwealth of Virginia, and 

'Bromberg D. Haralson, Smith, 355. 3 Bell v. Snyder, Smith, 247. 

2 Taliaferro v. Hungerford, C. & H. 4 Stat. 1875, c. 119, s. 18; Bradley v. 

246. The report of the committee, as Slemons, 1 Ells. 296. 

a whole, was overruled. 5 O'Hara v. Kitchin, id. 378. 



853 

that the contestant's delay of four months in taking the testimony 
was unreasonable. But the committee overruled the objection. 1 
If either party should desire further time, and congress should not 
then be in session, he should give notice to the opposite party, 
and proceed to take the testimony, which, upon good reason being 
shown, would doubtless be received by the house. 2 Where the 
governor of a territory issued the certificate of election to A., and 
B. served a notice of contest, under which all the testimony was 
duly taken, and subsequently the governor, on the ground of 
alleged fraud, revoked the certificate, so far as he was able to do 
so, and issued another certificate in favor of B., who was admitted 
by the house, at its organization, the house used the testimony so 
taken on the trial. 3 A deposition, taken without previous au- 
thority of the house, after the expiration' of the time limited by 
the act of February 19, 1851, was excluded. 4 Where testimony, 
which showed that the sitting member's real majority, in one 
county, was three hundred and eighty-one less than his reported 
majority, was taken by the contestant, after the expiration of the 
forty days allowed by law for taking proof, against the protest of 
the sitting member, the testimony was excluded. 5 Both parties 
could take testimony at the same time, under the act of February 
19, 1851. 6 It was held to be sufficient, in the first instance, for 
the committee to take evidence obtainable at the seat of govern- 
ment, the contestee being permitted to cross-examine and make 
counter-proof, any additional testimony necessary being taken in 
the state, under the order of the house. 7 The memorialist asked 
that the evidence should be taken, not under the act of February 
19, 1851, but by a committee of the house, sitting either in Balti- 
more, or Washington, on the alleged grounds that the authorities 
of Baltimore were either unwilling, or unable, to preserve the 
public peace ; that sixty days would not suffice for taking the tes- 
timony ; that the witnesses would be intimidated, if their names 
were disclosed, in advance, by the ten days' notice to the sitting 
member ; and that the disposition and character of the witnesses 

1 Porterfield v. McCoy, C. & H. 267. 5 Bell v. Snyder, Smith, 247. 

2 Vallandigham v. Campbell, 1 Bart. 6 Howard v. Cooper, 1 Bart. 275 ; 
223 ; Howard v. Cooper, id. 275. Vallandigham v. Campbell, id. 223 ; 

3 Morton v. Daily, id. 402. Boles v. Edwards, Smith, 18. 

4 Todd v. Jayne, id. 555; Keid v. ' Ramsey v. Smith, C. & H. 23. 
Julian, 2 Bart. 822. 



854 

would be better understood from a personal examination. The 
majority of the committee held that the opinion of the memorialist, 
respecting the disposition of the Baltimore authorities, did not 
furnish sufficient ground for the allowance of the application ; that 
the insufficiency of the time might be a good reason for an exten- 
sion of time, after the sixty days had been exhausted ; that the 
witnesses could not, in any event, be examined personally by the 
house itself ; that the memorialist should be required to proceed 
under the act of February 19, 1851 ; that the time should be ex- 
tended, if that proved necessary ; and that, if the taking of testi- 
mony should, in fact, be prevented, by lawlessness, or any other 
cause, the occasion would arise for the house to take the matter 
into its own hands and proceed, with all the power it possessed, 
to vindicate the purity of the election. 1 

§ 1025. The policy of the house of representatives is adverse to 
the extension of time for taking testimony. Procrastination, in con- 
tested election cases, wastes the rights in controversy, and impairs 
the value of the final decision. The law is intended to furnish ample 
opportunity for taking testimony. During the pendency of a con- 
tested election case the sitting member exercises the functions and 
receives the emoluments of the office in question. The subject of 
the controversy does not, as in ordinary cases, remain, undimin- 
ished in value and proportions, to be recovered by the successful 
party, at the end of the litigation ; but it diminishes daily, as the 
end of the official term approaches. While it does not follow 
from these considerations that an extension of time for taking 
testimony can, in no case, be granted to the sitting member, it does 
follow that no such extension should be granted to a sitting mem- 
ber, unless it clearly appear that, by the exercise of great 
diligence, he has been unable to procure his testimony, and that 
he will be able, if an extension be granted, to obtain such material 
evidence as will establish his right to the seat, or that, by reason 
of the fault, or misconduct, of the contestant, he has been unable 
to prepare his case. 2 The provision of the revised statutes, relat- 
ing to the extension of time for taking supplementary testimony, 
is applicable only to cases in which applicants for extension have 
already taken some testimony, that is to^say, have made some use 
of the time given them. 3 

brooks v. Davis, 1 Bart. 245. The a Giddings V. Clark, Smith, 91. 

house concurred by a vote of 115 to 89. 8 Boles v. Edwards, id. 18. 



855 

§ 1026. Where, more than a mouth after the hearing, and before 
the committee had closed the investigation, the sitting member 
presented to the committee ex parte affidavits, showing that the 
judges of election were sworn, and asked the committee, either to 
receive them, or to grant further time to take testimony, the com- 
mittee held that the affidavits were inadmissible, and that there 
was no reason to grant further delay. 1 An application for an 
extension of time for taking testimony, made by a sitting member, 
and based on the alleged ground "that the contestant occupied 
the whole of the time allowed by law for taking testimony, and 
that he was compelled, in looking after his own interest in the case, 
to attend the taking of said testimony of the contestant and has 
had no time or opportunity to take any testimony in his own 
behalf," will not be granted, when it appears that the sitting 
member was only present for a few minutes during the taking of 
the contestant's testimony, and has not taken, or attempted to 
take, any testimony himself. Parties should be held to a rigid 
rule of diligence under the law, and no extension ought to be 
allowed when there is reason to believe that, if the applicant had 
brought himself within such rule, there would have been no occa- 
sion for the application. 2 

An application for further time to take testimony, which is based 
upon the laches of the party making it, should be promptly 
rejected. 3 The committee, with the concurrence of the house, 
refused an application for further time to take testimony, made by 
a contestant, who had taken no testimony, and who alleged, as the 
ground of his application, that there were but two judges of the 
district court in New Mexico ; that the residence of one of the 
judges was at a considerable distance from the contestant's resi- 
dence, and was accessible only by roads infested by hostile Indians, 
and the other was a violent political opponent, but gave no reason 
why the testimony could not have been taken before the probate 
judge named in the notice. 4 An application for an extension of 
time for taking testimony, made more than sixteen months after 
the election, by a sitting member, who had taken no testimony in 
the case, and predicated mainly on the ground that the contest- 
ant's testimony had been taken during the last part of the time 

1 Blair v. Barrett, 1 Bart. 308. s Howard ®. Cooper, 1 Bart. 275. 

2 Boles v. Edwards, Smith, 18. 4 Gallegos v. Perea, id. 481. 



856 

allowed by law for examining witnesses, was rejected by the com- 
mittee. 1 

§ 1027. The sitting delegate asked for further time to procure 
copies of the poll-books, from the several townships of five of the 
counties, for the purpose of proving that the election, in the 
townships in which majorities had been given for the contestant, 
had been irregularly conducted ; that the judges, in one town- 
ship, had closed the polls before six o'clock ; and that, in many 
instances, the returns were manifestly defective. But, nearly five 
months having elapsed after the election and more than three after 
the service of the notice of contest, the committee were of opinion 
that sufficient time had been allowed. 2 Affidavits, offered by a 
sitting member, in support of an application for extension of time 
to take testimony, are fatally defective if they do not contain the 
names of the witnesses, whose testimony is wanted, nor a state- 
ment of the facts which can be proven by their testimony. 3 

§ 1028. The committee reported substantially as follows : The 
election was held April 29, 1811. On the 7th of May, 1811, the con- 
testant served notice of his intention to contest the election, on the 
ground that certain persons named, who voted for the sitting mem- 
ber, were not legal voters. On the 27th of September, 1811, the 
contestant gave notice to take depositions, and took them October 
10, 17, and 22, 1811 ; but the sitting member did not attend. The 
official returns gave the sitting member a majority of six votes. The 
land lists of 1810 showed that a number of the supporters of each 
candidate were not, in 1810, land-owners qualified to vote. The 
votes of these being deducted, the contestant had a majority of 121 
votes. These land lists of 1810 were, in the opinion of the com- 
mittee and of the parties, prima facie evidence to show who were 
qualified, or disqualified, in 1811. But the sitting member claimed 
that, if he should be permitted to take testimony, he could over- 
come the prima facie evidence of the land lists. At that time 
there was no law of the United States providing for taking testi- 
mony in contested election cases. The committee concluded that 
it was not incumbent on the sitting member to commence taking 
testimony before the contestant had commenced, and that, in this 

1 Howard v. Cooper, 1 Bart. 275. The 2 Easton v. Scott, C. & H. 286. 

house sustained the report of the com- 3 Giddings v. Clark, Smith, 91. 

mittee by a vote of 89 to 79. 



857 

case, the sitting member had not sufficient time to take his testi- 
mony, after the contestant commenced to take his own. They 
submitted the following resolution : " Resolved, That a reasonable 
time be allowed John F. Hungerford, a member of this house, to 
procure testimony relative to his election, and that the committee 
of elections have power to examine witnesses and to make order 
for such examination in the case of the said election." After a 
consideration of two days, in committee of the whole house, the 
resolution was rejected, by a vote of 46 to 65. The sitting member 
was then evicted by a vote of 67 to 29, and the contestant was 
admitted to the seat by a vote of 66 to 19. x When the sitting 
member showed, as the basis of an application for an extension 
of time for taking testimony, that the contestant had tampered 
with the counsel of the sitting member, and such counsel, having 
possession of the evidence, refused to surrender it for use in the 
case, it was held a sufficient ground for an extension of time. 2 

§ 1029. Where the officers designated in section 3 of the act of 
February 19, 1851, had refused to take testimony, on the ground 
that their other official duties left them no time for this, it was 
held to be competent to take testimony, under section 10 of the 
act, before two justices of the peace. 3 United States commissioners, 
not being designated by statute to take testimony, in contested 
election cases, cannot take such testimony, without the written 
consent of parties. 4 Depositions taken before a county clerk, and 
objected to at the time, are not admissible. 5 It was claimed that 
a mayor, who was authorized by state laws to administer oaths 
only within the city of which he was mayor, could not take depo- 
sitions outside of such city, under the provisions of the act of 
February 19, 1851, regulating contested elections. But the com- 
mittee held that the mayor's authority in the premises was derived 
wholly from the act of congress, and was not affected by the state 
laws, and that the mayor could take depositions anywhere in the 
district. 6 When the notice designated the chief justice of the 
territory as the officer before whom the depositions would be taken, 
but it was taken before a judge of probate, the deposition was 

1 Taliaferro v. Hungerford, G. & H. 4 Stolbrand v. Aiken, 2 Ells. 603. 
246. 5 Stovall v. Cabell, id. 667. 

2 Bowen v. De Large, Smith, 99. 6 Washburn v. Voorhees, 2 Bart. 54. 

3 Harrison v. Davis. 1 Bart. 341. 



858 

rejected. 1 Depositions were taken before two justices of the 
peace, residents of the territory of Dakota, who were only au- 
thorized to take them when none of the other officers mentioned 
in the statute were in the territory. The statute required that the 
person taking the depositions should be a resident of the territory, 
and the only persons, besides justices of the peace, before whom 
they could be taken, were the chief justice and associate justice of 
the territory. The families of these officers had never been dom- 
iciled in the territory. They resided and received their mail in 
the state of Iowa ; and only visited the territory to hold their courts. 
The first notice was given to take testimony before the chief 
justice, or before some other person duly qualified to take the 
testimony. At the time this notice was served the chief justice was 
in the territory. And he wrote to the contestant's attorney that 
he would open the examination and remain as long as he could. 
The committee were of the opinion that the justices were compe- 
tent to take the depositions. 3 

§ 1030. Provision is made, in the revised statutes of the United 
States, for taking depositions to be used, on the trial of contested 
election cases, in the house of representatives. 3 Depositions taken 
without notice are not admissible in evidence. 4 In the Massa- 
chusetts house of representatives depositions of voters, taken with- 
out proper notice to the opposite party of the time and place of 
taking them, or waiver of notice on his part, are inadmissible on 
the hearing of a controverted election, unless taken by a commis- 
sion under an order of the house. 5 A notice was left at the house 
of the sitting member, in North Carolina, on the 2d of November, 
1803, to take depositions on the 22d, 23d, 29th, and 30th days of 
that month. The sitting member, being at the seat of government, 
did not receive the notice until November 23, 1803 ; and he was 
not represented at the taking of the depositions. A second notice 
was left at the house of the sitting member, on the 1st of Decem- 
ber, 1803, to take depositions on the 9th and 10th of the same 
month, which the sitting member did not receive in due time, and 
he was not represented at the taking of the depositions. The 
committee held that the depositions, taken under these notices, 

1 Otero v. Gallegos, 1 Bart. 177. 3 Kev. Stat. U. S. ss. 107 to 130. 

2 Todd v. Jayne, id. 555. The house 4 Smith's case, C. S. & J. 223. 
concurred by a vote of 87 to 36. 5 Hood v. Potter, L. & R. 217. 



859 

could not be admitted in evidence, under the acts of congress 1 
then in force. 2 

§ 1031. When a notice to take depositions, on the 9th of March, 
was served on the 28th of February, the majority of the com- 
mittee held that the act of February 19, 1851, construed in the 
spirit of the well established rule that, in the computation of time, 
the day upon which an act is performed, or a notice given, is to 
be included, or excluded, as may be necessary to prevent an 
estoppel or forfeiture, would be satisfied by the notice ; that the 
law itself was directory and cumulative ; that its object was to pro- 
tect, and not to defeat, the rights of contesting parties and of the 
people ; that it was designed to be an aid, and not an obstruction ; 
and that the rejection of the testimony would be unreasonable and 
unjust, violative of the spirit, if not of the letter, of the act of 
congress ; and would amount to an abdication, by the house, of 
its constitutional duties and functions. The minority were of the 
opinion that the notice of nine days was insufficient, and that the 
depositions could not be received. 3 * Where the contestant's notice 
to take depositions did not contain the name of the witness, and 
the sitting member's counsel, although present, declined to cross- 
examine, it was held that the deposition was inadmissible, under 
the act of February 19, 1851. 4 Where the name of the witness is 
not given in the notice to take depositions, under the act of Feb- 
ruary 19, 1851, his deposition will be rejected. 5 In the house of 
representatives of Massachusetts, where the petitioner notifies the 
returned member of his purpose to contest the election, and also 
notifies such member and the selectmen of the town of his inten- 
tion to take testimony, in the case, at a time and place named, to 
prove fraud or mistake in the record and return of votes, and 
requests them to be present and cross-examine the witnesses, the 
depositions of the witnesses, so examined, will be received in 
evidence, with the same effect as if taken before a commissioner, 
duly appointed by the house, although none of the parties so 
notified attend. 6 

§ 1032. Documentary evidence, in legal form, may be presented 

1 1797, c. 25 ; 1800, c. 28. 4 Dodge v. Brooks, 2 Bart. 78. 

2 McFarland v. Purviance, C. & H. 131. 5 Koontz v. Coffroth, id. 138. 

3 Archer v. Allen, 1 Bart. 169. The 6 Perry v.. Montague, L. & R. 200. 
house declared the seat vacant. 



860 

to the committee of elections of the house of representatives at 
any time. In case of surprise a continuance may be granted. 1 
A party to a contested election case in the house of representatives 
of the United States, who has occasion to use both depositions 
and documentary proofs, may cause the documentary proofs to be 
delivered to the officer, before whom the depositions are taken, 
and to be transmitted by him, with the testimony, to the clerk of 
the house, in accordance with the provisions of the revised statutes, 
when that course is practicable. But when he has no occasion 
for the use of depositions, or the documents are not within the 
jurisdiction of the officer, who takes the depositions, his only 
course is to file the documentary proofs in the usual mode. The 
statute neither requires, nor permits, the designation of an officer 
for the sole purpose of securing the introduction of documentary 
proofs. Nor does it compel the party to take a deposition, which 
he does not need, for the mere purpose of appending to it the 
documentary proof. Nor does it compel either party to file his 
documentary proofs within the time limited by the statute for 
taking depositions. No notice is necessary to obtain a certified copy 
of a record. Where such copy was sent to the house, sealed up 
with testimony taken, and referred to the committee, with such 
testimony, it was held, by the committee, to be admissible in 
evidence. 2 The reference of a document, by the house, to the 
committee of elections, is not decisive of its competence as 
evidence. The question of its competence still remains, to be 
decided by the committee and by the house. 3 

1 Cannon v. Campbell, 2 Ells. 604. of the secretary of state, because the 

* Daily v. Estabrook, 1 Bart. 299. document was not ■ obtained,' or 'taken,' 

within the sixty days limited for ' taking 

Covode v. h oster, id. 525. testimony.' This objection, in the opin- 

The statutory provisions applicable to ion of the undersigned, is destitute of 

the subject are to be found in sections force ;— without deciding whether it was 

107, 108, and 123 of the revised statutes. * ot ™* her <?eduty of the sitting mem- 

ber, than of the contestant, to produce 
In the case of Vallandigham v. Camp- it before the com mittee, they are clearly 

bell, 1 Bart. 223, three reports were sub- of the opinion that the negative provi- 
mitted, two of them signed, each by four sion, as to testimony, in the ninth sec- 
members of the committee, and the third tion n of th % a <* of 1851 > was fended to 

apply, and does apply, solely to the 
signed by one member only. In the re- testimony of witnesses, or, at most, to 
port which was adopted by the house such writing as can be proved only by 
the committee said : the examination of witnesses ; and that 

documentary evidence, at least that 

"It was objected that the committee which proves itself, may be obtained at 

ought not to receive and consider the any time after the sixty days and pro- 

' abstract ' of votes returned to the office duced before the committee at the hear- 



861 

§ 1033. Ex parte affidavits are not competent evidence in con- 
tested election cases, unless made so by statutory enactment. 1 
But, in a case which was decided by the house of representatives 
of the United States, in 1826, the committee held that the con- 
testant could not object to ex parte affidavits, offered, by the sitting 
member, as evidence to show fraud and corruption, he himself 
having offered ex parte affidavits in the case ; and they admitted 
them in evidence. 2 An affidavit was admitted, in evidence, in a 
case which occurred in the second congress ; but it was probably 
taken on notice, there being, at the time, no rule of the house, or 
act of congress, regulating the mode of taking testimony. 3 And 
ex parte affidavits, although admissible in evidence, before the 
canvassing board, under the state laws, are inferior, if not incom- 
petent, evidence on the trial of cases on their merits. 4 

§ 1034. For the purpose of determining whether an unusually 
large proportion of the voting population failed to vote, at a par- 
ticular election, judicial notice may be taken of the census reports 
of the federal government, and of the statistics of elections held in 
the United States. 5 Reports of a census, taken under the ordi- 
nances of a city, and deposited in the archives of the city, are, like 
land lists and lists of taxables, official documents, and iuvmsh prima 
facie evidence of the facts which they establish. 6 The committee 
of elections has received, in evidence, the president's message, and 
the report of the chief supervisor of elections, with accompanying 
documents. ' 

ing. The ' abstract ' in question purports Smith, 291, a transcript was received 

to come from the proper office and offi- from t h e secretary of state of Arkansas, 

cer, and bears upon it the impress of the , ,, , . , . ., , . ,, 

great seal of the state, than which there b ? the contestee, during the contestant's 

can be no higher evidence of authen- closing argument ; and the committee, 

ticity. In confirmation of this view the without a dissenting voice, admitted it 

undersigned find that, in a majority of j n evidence. 

cases since the act of 1851, the abstract , _ , w ., - „. QOO „ , 

~ ,, , v ' , „ 4 , Holmes a. Wilson, 1 Ells. 322: French 

or copy of the returns has been ob- ' ' 

tained or taken ' subsequent to the sixty «• Bacon, L. & It. 184; Lyon v. Smith, 

days limited in the act." C. & H. 103 ; Hogan v. Pile, 2 Bart. 281. 

This view was strenuously opposed by 2 Biddle and Kichard v. Wing, 0. & H. 

members of the committee in one of the 504. 

reports and on the floor. Great stress 3 Jackson v. Wayne, id. 58. 

was laid upon the hardship which the 4 biddings v. Clark, Smith, 91. 

admissiou of the document would bring 5 Norris v. Handley, id. 68 ; Niblack 

upon one of the parties in that particu- v. Walls, id. 101. 

lar case. But the house received the 6 Blair v. Barrett, 1 Bart. 308. 

document 7 Sheridan v. Pinchback, Smith, 196. 

In the case of Gause v. Hodges, 



862 

§ 1035. A regimental muster-roll is prima facie evidence to 
show what men composed the regiment, at, or near, the time when 
it was made out, but is not evidence of the state of the regiment 
long afterwards. And it was held that, inasmuch as the law re- 
quired the age of the soldier to be made known, at his enlistment, 
and made his oath conclusive, against himself, as to his age, the 
record of his age, made from his oath of enlistment, upon the 
muster-roll, by the proper officer, at his muster -in, should be taken 
as prima facie evidence of his age, by third persons, and especially 
by those seeking to avail themselves of the vote of the soldier ; 
but that it was not evidence of residence, which was not required 
by law to be made known, or entered on the roll. The three 
regimental muster-rolls, of which one was kept with the regiment, 
a second deposited with the adjutant-general of Missouri, and a 
third deposited with the adjutant-general of the United States, 
were not copies, but were triplicate originals, and a duly authenti- 
cated transcript of either was competent evidence. 1 A company 
muster-roll, consisting, in part, of a copy of a prior muster-roll, 
which was itself copied, in part, from earlier rolls, is not admissible 
evidence, in a contested election case, to show that a voter was a 
soldier. 3 

§ 1036. A report of a joint select committee of a state legisla- 
ture is not competent evidence, in a contested election case, in the 
house of representatives of the United States. It is, in no sense, 
a judicial determination. But, if it were entitled to rank as a 
judicial determination, and were, in fact, a decision made in a pro- 
ceeding between the same parties, it would not be competent evi- 
dence, because the house cannot delegate to another tribunal its 
constitutional authority to judge of the elections, returns, and 
qualifications of its members, cannot discharge, by proxy, a duty 
imposed by the constitution. And, for the latter reason, a decision 
of a state court is not competent evidence in a contested election 
case in the house of representatives of the United States. 3 The 
house, by a vote of twenty to forty-one, refused to receive, in evi- 
dence, the decision of the state senate, impeaching a judge for 

J Knox v. Blair, 1 Bart. 521. freeholders in 1811. Taliaferro v. Hun- 

2 People fl. Riley, 15 Cal. 48. gerford, C. & H. 246 ; Porterfield v. Mc- 

The Virginia land lists of 1810 were Coy, id. 267 ; Loyal v. Newton, id. 520. 

held, by the committee, to be prima 3 Boles v. Edwards, Smith, 58. 

facie evidence as to the qualifications of 



863 

fraudulent conduct affecting one of the county returns. 1 Testi- 
mony taken by the senate committee on privileges and elections 
has been received as competent evidence in a contested election 
case in the house. 2 The record of a proceeding, instituted by certain 
candidates to test the validity of an election, is not admissible in 
evidence in a contested election case, in the house of representa- 
tives of the United States, between other persons who were candi- 
dates at the same election. 3 The majority of the committee used 
as evidence, in a prima facie case, a report of a committee of inves- 
tigation of a state legislature ; and it was decisive of the case. The 
house ratified the action of the committee, by a vote of 85 to 38. 4 
§ 1037. The house of representatives will not follow the de- 
cisions of state tribunals respecting election laws, unless such 
decisions are based upon sound principles and comport with rea- 
son and justice. The rule that decisions of state courts which 
have become rules of property will be followed by the federal 
judiciary is not applicable to the case of the election of represent- 
atives in congress. The adjudications of state courts, under state 
laws, adopted as federal laws in the election of representatives, 
could not be adopted as absolute rules, by the house, without a 
subversion of the constitutional provision that each house shall be 

1 Jackson v. Wayne, C. & H. 50. was referred, with the case, to the com- 

2 Sheridan x>. Pinchback, Smith, 196. mittee, showed such intimidation and 

3 Spencer v'. Morey, id. 437. violence in the parishes of Orleans and 

4 Hunt v. Sheldon, 2 Bart. 530. The Jefferson as justified the rejection of the 
second congressional district of Louis- votes of those parishes ; and they recom- 
iana consisted of the parishes of Orleans, mended that the votes of the other par- 
Jefferson, La Fourche, St. Charles, St. ishes should be counted and the seat 
James, St. John Baptist, and Terrebonne. awarded to Sheldon, without prejudice 
The number of registered voters in the to the right of contest. But the minority 
two parishes of Orleans and Jefferson was insisted that both parties specifically and 
26,283, and in all the other parishes of emphatically denied the charges of vio- 
the district 13,489. The number of votes lence and intimidation ; that the report 
cast in the two parishes of Orleans and of the legislative committee was not legal 
Jefferson was 14,546. The number cast evidence before the committee, but was 
in all the other parishes was 12,509. The wholly ex parte, transparently partisan, 
votes of the parishes of Orleans and Jef- and, judged by itself, wholly unworthy 
ferson being counted, Hunt had a ma- of respect or belief ; and that the votes 
jority of 9,623. Those votes being ex- of the parishes of Orleans and Jefferson 
eluded Sheldon had a majority of 3,345. ought not to be rejected. The house, 
The majority of the committee concluded by a vote of 85 to 38, awarded the seat 
that a report of an investigating commit- to Sheldon. 

tee of the legislature of Louisiana, which 



864 

• 

the judge of the elections, qualifications, and returns of its own 
members, and a sacrifice of consistency in the adjudications of the 
house. While the house will generally accept the interpretation 
given by state courts, to state laws regulating congressional elec- 
tions, when well settled, uniform, and reasonable, it will not recog- 
nize any obligation perfunctorily to register the decrees of state 
officials relating to the election of its own members. 1 Where 
it was claimed that the votes of certain precincts should be 
rejected, because the returns did not embrace lists of the voters, 
as the law required, the committee, although divided in opinion 
on the question involved, held that they were bound by the con- 
struction of the law adopted by the state canvassers, who had 
received and counted the votes. The house accepted the decision 
of the committee, without a division. 2 

§ 1038. Stipulations of parties, as to disputed questions of fact, 
are to be received with great caution, in cases of contested elec- 
tions of representatives, in congress ; for such cases involve, not 
merely the rights of the parties, but also the rights of the people 
of the district, of the state, and of the United States, which are 
not to be stipulated away by parties. 3 The evils resulting from 
permitting parties, at their own convenience, to regulate the time 
of taking testimony, without regard to the statutes, or the public 
interest, are too serious and obvious to require comment. Agree- 
ments made in contravention of the statutes, in relation to taking 
testimony, to be considered at all should be in writing, properly 
signed, and made a part of the record. Even then the policy of the 
law requires that they should not be regarded, unless it appears 
that they were entered into bona fide, for an adequate cause, to be 
determined by the house of representatives. 4 Astipulation, by the 
parties, that votes objected to by either party, as illegal, should 
be excluded, unless proven by the other party to be legal, was 
accepted by the committee as a rule for the case ; but it was con- 
demned as unsound for the reason that votes, actually received 
by the inspectors, were prima facie legal. 5 It is not competent for 
the parties to entirely waive the requirements of the act of February 
19, 1851, respecting the notice of contest and answer, which were 

1 Lynch v. Chalmers, 2 Ells. 338 ; Case 3 Holmes v. Wilson, 1 Ells. 322. 
of the Tennesee Representatives, 4 O'Hara v. Kitchin, id. 378. 
Smith, 3. 5 Draper *>. Johnston, C. & H. 702. 

2 Milliken v. Fuller, 1 Bart. 176. 



865 

enacted, not only to aid the parties in the preparation of their case, 
but also to secure a record and a distinct and well denned issue, 
upon which the house can pass. 1 If the contestant and sitting 
member were the only parties concerned in the controversy, it 
might not be unjust to hold that the sitting member, upon service 
of notice of contest according to law, must answer as the law re- 
quires, or, by neglect or refusal, be taken as confessing the truth 
of the allegations made, in conformity to law, against his right to 
the seat, and compelled to abide the judgment of the house upon 
such confession. But all the electors of the district have a vital 
interest in the question at issue ; and no one of them can be pre- 
cluded, by any laches not his own, from insisting that the choice 
of the majority shall be regarded. No confession of the sitting 
member can place the contestant in the seat, unless he is the 
choice of the majority, nor deprive that majority of its rightful 
representation. While the sitting member may well be deprived, 
by his neglect to answer, of the privilege of relying upon any new 
matter, the house should require proof that the contestant received 
a majority of the legal votes, before awarding to him the contested 
seat, however the sitting member may have seen fit to conduct his 
own case. 2 

§ 1039. The committee held that an agreement of parties " that 
votes should be admitted, on title-bonds for a sufficient quantity 
of land, accompanied with a possession of six months ; that per- 
sons, having a right to vote in one county, but happening to be 
present at an election in another county of the same district, might 
vote in such other county ; and that votes of persons residing out 
of the district should not be admitted," could not either diminish 
or enlarge the elective franchise, as secured to the freeholders of 
the district, by the laws of the commonwealth. 3 The committee of 
elections reported that it appeared that the parties to the contest 
had observed the practice, which prevailed in contesting votes for 
members of the legislature of Virginia, and had regarded as illegal 
all disputed votes, in the absence of proof establishing their 
legality, and had taken all their testimony under the laws of Vir- 
ginia ; and that, although the committee were of the opinion that 
votes regularly received by the election officers, were to be held 

1 Thomas v. Arnell, 2 Bart. 162. 3 Porterfield v. McCoy, C. & H. 267. 

2 Follett v. Delano, 1 id. 113. 

55 



866 

legal in the absence of proof tending to show their illegality, yet, 
inasmuch as the testimony had been so taken that justice could 
not be done to the parties, without accepting the stipulation, they 
had excluded all votes to which objection had been made, unless 
shown affirmatively to have been legal votes. 1 On the trial of a 
contested election case, before the board of county commissioners, 
under the laws of Indiana, 2 the contestant filed a list of names of 
persons alleged to have voted illegally, and the contestee, by an 
entry of record, conceded, " for the uses and purposes of this trial," 
that such voters were " minors and non-residents, as charged." 
On the trial of the cause, in the circuit court, on appeal, the record 
of the proceedings before the county board was offered, in evidence, 
to prove the admission of the contestee that the persons named 
were not legal voters. The supreme court of the state held that, 
while a party could bind himself by an admission of record, as to 
material facts involved in the case, the record offered did not show 
an admission that the persons named were not legal voters, but 
only a concession of that fact for the purposes of the trial before 
the commissioners. 3 

§ 1040. The memorial of the contestant was laid before the 
house of representatives on the 18th of October, 1803, but the 
depositions and papers referred to the committee did not sub- 
stantiate his claim. In October and November, 1803, the con- 
testant, by letter, requested further time to procure proofs. After 
January 5, 1804, the committee caused the contestant to be noti- 
fied "to be prepared and to attend himself, or by his agent, in 
order to obtain a decision." On the 9th of March, 1804, the 
committee reported that the contestant had not complied with the 
request, and recommended that the sitting member be declared 
entitled to his seat. 4 

§ 1041. Contested election cases are tried, in the first instance, 
before the committee of elections. But the house has declined to 
instruct the committee to report the facts established by the 
proofs, and has examined the proofs, without the aid of the com- 
mittee. 5 Arguments of counsel are heard, and the action of the 
committee is determined by the vote of a majority of a quorum 

1 Botts v. Jones, 1 Bart. 73. 4 Cabell v. Kandolph, C. & H. 134. 

2 Rev. Stat. Ind. G. & H. 319. See also Smith «. Robertson, 2 Ells. 284. 

3 Wheat v. Ragsdale, 27 Ind. 191. 6 Ramsay v. Smith, C. & H. 24. 



867 

present. It sometimes happens, therefore, that the report of the 
committee, so agreed upon, although approved by a majority of 
the quorum present at the vote, is, nevertheless, disapproved by 
a majority of the committee. While this circumstance does not 
affect the parliamentary status of the report in the house, it often 
impairs the strength of the report on the final vote. The members 
of the committee, who dissent from the conclusions of the majority 
of the quorum present at the vote, are permitted to submit the 
views of the minority to the house. The document setting forth 
their views is usually designated as the minority report. It may, 
however, have the approval of a majority of the whole committee. 
The chairman of the committee, when voting with the majority, 
assigns to one of the members the duty of writing out the report, 
and of managing the case on the floor of the house. The duty 
of writing out the views of the minority, and of maintaining them 
in the house, is assigned to a member designated by a vote of the 
minority. When the chairman votes with the minority the report 
of the committee is made by a member designated by a vote of the 
majority. Many cases of contested elections, in the house of rep- 
resentatives of the United States, have been referred to the com- 
mittee of the whole -, 1 but the practice now is to consider such 
cases in the house. Counsel have been heard by the house, 2 and 
contestants, as well as sitting members, are permitted to advocate 
their own claims on the floor ; but the debate is generally confined 
to the committee of elections. At the close of the debate a vote 
is taken by the house. 

§ 1042. Upon the final determination of the case, by the house, 
the successful claimant, if not already admitted to the seat, pre- 
sents ,himself at the bar of the house, and the oath of office is 
administered to him by the speaker. 8 In England when it is 

1 Jackson v. Wayne, C. & H. 48 ; Lati- report of the committee admitting a 
mer v. Patton, id. 72 ; Van Rensselaer v. claimant to his seat, by a vote of seventy- 
Van Allen, id. 74 ; White's case, id. 86 ; eight to seventy-three, while the speaker 
Rutherford v. Morgan, id. 119 ; McFar- stood, with uplifted hand, waiting to ad- 
land v. Purviance, id. 131 ; Lewis' case, minister the oath to the claimant, who 
id. 128 ; Van Ness' case, id. 124 ; Hoge's was, at the moment absent from the hall, 
case, id. 136 ; Spaulding v. Mead, id. a motion to reconsider was made, which, 
158. after prolonged debate, was carried ; and 

2 Jackson v. Wayne, id. 49; Moore v. the house declared, by a vote of one 
Lewis, id. 129. hundred to sixty-nine, that no valid elec- 

3 In the case of Sypher v. St. Martin, 2 tion had been held. 
Bart. 699, the house having adopted the 



868 

determined that the sitting member was not duly elected, and that 
some other candidate was duly elected, and ought to have been 
returned, the clerk of the crown is ordered to attend and amend 
the return. This was formerly done by erasing one name, and 
inserting the other, at the table of the house. But the form of the 
return having been altered, by the act of 1872, it has since been 
usual to order the clerk of the crown to amend the return, by sub- 
stituting one name for another. 1 In the case of a double return, 
the clerk of the crown is ordered to attend and amend the return, 
by erasing the name of one of the parties, and w T hat relates to him 
in the return. 2 When the election is void a new writ is ordered, 
unless the house deems it proper to suspend its issue. 3 Every 
contest pending in the house of representatives abates at the expi- 
ration of the term for which the seat is claimed. Upon the disso- 
lution of parliament all pending petitions drop, and all moneys 
deposited as security for costs are returned to the depositors. 4 

1 130 Com. J. 236 ; May Pari. Pr. 672. 3 May Pari. Pr. 672. 

2 lb.; 97 Com. J. 203; 124 id. 173; 4 Carter v. Mills, 9 L. K. C. P. 117. 

103 id. 218 ; 121 id. 156. 



CHAPTER XLII. 

DEATH, RESIGNATION, OR EXPULSION OF PARTIES TO CONTEST; 
PUNISHMENT OF RECUSANT WITNESSES ; COSTS AND COM- 
PENSATION. 

Secs. Skcs. 

1. Death, or resignation of I 3. Punishment of recusant wit- 

party . . . . 1043-1046 \ nesses . . . . 1055-1057 

2. Expulsion . . . 1047-1054 4. Costs and compensation . 1058-1070 

§ 1043. The technical action inter partes provided for by the 
revised statutes abates on the death of either party ; but the power 
of the house to adjudicate any question of title involved in that 
action survives. The consequences are obvious. The allegations 
of the deceased party, which were binding on him because they 
were his allegations, made in a suit to which he was a party, are 
not binding in another suit on a party who did not make them. 
The stipulations which were binding on him in that suit because 
he made them, are not binding on a party to another suit who did 
not make them. The depositions which were admissible, as against 
him in that case, because taken according to law, on notices duly 
served by or on him, with opportunity for examination and cross- 
examination, are not admissible in another suit, as against a person 
who was not a party to the first action, and had no notice of the 
taking of the depositions, or opportunity to examine or cross-ex- 
amine the witnesses. The laches, by which he was concluded in 
that action, will not necessarily conclude a person, who was not a 
party to the suit, and did not incur the laches. 

§ 1044. But, while the technical contest itself abates, the power 
of the house to adjudicate any question of title involved therein 
survives ; and the main question of that contest, namely, whether 
the contestant, or contestee, was chosen in the original election 
becomes the first question, in any subsequent proceeding to deter- 
mine the legal title to the seat. Until that question is decided, 
by the house, it will not be certain that any claimant, in the new 
proceeding, has any rights growing out of the new election. If 
the contestant shall be ultimately adjudged to have been chosen in 
the original election, instead of the deceased contestee, the second 

869 



870 

election will have been void. But, after the death of the contestee, 
this adjudication is conducted, not in the technical statutory 
contest, which was pending at the death of the contestee, but in a 
new proceeding, to which a new claimant is a party, which pro- 
ceeding takes either the form of a new contest, under the statute, 
or one of the other forms known to the constitution. The new 
statutory contest may be instituted, by the opponent of the can- 
didate returned as chosen in the second election, in which contest 
may be determined all questions springing out of both elections. 
If a third person shall become bound by a deceased party's alle- 
gations, stipulations, depositions, or laches, it will be, not upon 
the ground upon which the deceased party was bound, but because 
the house, in the exercise of its plenary power over the case, 
shall see fit so to bind him. If a returned contestee die, pending 
the contest, after the proofs are taken, and before he is sworn as 
a member of the house, and a new election be held, before the 
organization of the house, to fill the vacant seat, resulting in the 
choice and return of a third person, the technical statutory contest, 
originally instituted by the contestant against the deceased con- 
testee, will abate, and no allegations, stipulations, depositions, 
waivers, or laches of the deceased contestee, will be binding, unless 
the house shall see fit to make them binding, upon him. 

§ 1045. But if the technical contest, which is made a proceeding, 
inter partes, by the revised statutes, could survive either of the 
parties, it would, nevertheless, be clear that when the house should 
seat the newly returned representative, on his credentials, without 
condition or reservation, the original contest, as a technical con- 
test, would be thereby dismissed and pass from the jurisdiction of 
the house. From the time when the new claimant should take 
his seat, in pursuance of the resolution of the house, it would be 
his right to that seat which a contestant, or claimant, or protestant, 
would be compelled to assail. After that time the deceased con- 
testee's right would be a question for the adjudication of the house, 
not because it had once been involved in the original contest, but 
because it was then involved in the question of the new claimant's 
right to the seat which he occupied. The house, by admitting the 
new claimant to the seat, without condition or reservation, invests 
him with the right which belongs to other sitting members, under 
the constitution and the law, subject to the supreme power of the 
house, to receive due notice of any proposed contest, to have the 



871 

opportunity to answer, to examine his own witnesses, to cross-ex- 
amine those of his opponents, and to be concluded by no acts, 
omissions, stipulations, laches, or waivers, except his own. Where 
a party died, pending a contest for a seat in the house of rep- 
resentatives, and a special election was thereupon held, the house 
decided that all proceedings had, and testimony taken, in the case, 
before such special election, should be binding upon the person 
returned as then elected, in the further prosecution of the con- 
test. 1 

§ 1046. Upon the death of a representative, holding an uncon- 
tested seat, the governor of the state will order a special election, 
to fill the vacancy for the unexpired term. In like manner upon 
the death of a party to a contest, who has received his credentials, 
in due form, from the state authorities, whether his death shall 
occur before, or after, the organization of the house, the governor 
will ordinarily assume that a vacancy has occurred, and will order 
a special election to fill it. But, upon the death of a contestant, 
pending the contest, a new election will not be ordered before 
a final adjudication of the contest, by the house, in favor of 
the contestant. The death of the candidate having the highest 
number of votes, before the canvass is made, will not entitle any 
other candidate to the seat, but will occasion a vacancy, to be filled 
by a new election. 2 The death of a returned member of the British 
house of commons, before taking his seat in parliament, does not 
prevent a contest of his election. 3 Upon the death of a candidate, 
after election, and before the meeting of congress, the governor, 
being in doubt as to the result, declined to give a certificate to 
either candidate. The committee concluded that the deceased 
candidate was duly elected, and recommended that the seat be 
declared vacant. But the house, overruling the committee, decided 
that the surviving candidate was duly elected, and he was sworn 
in. 4 

§ 1047. The power of the house of representatives to determine 
who shall, or shall not, hold seats in that body, embraces two 
branches wholly distinct both in character and origin. The first 
is conferred by that clause of the constitution which provides that 
" each house shall be the judge of the elections, returns, and quali- 
fications of its members." The exercise of the power conferred by 

1 Mackey v. O'Connor, 2 Ells. 561. 3 Tipperary Election, 9 Ir. R. C. L. 173. 

2 Blakey v. Golladay, 2 Bart. 417. 4 Richards' case, C. &. H. 95. 



872 

this provision of the constitution requires only a majority vote, 
and has become one of the most important branches of the ordi- 
nary business of the house of representatives. Its necessity, which 
was foreseen by the framers of the constitution, was in fact ex- 
perienced at the first meeting of the first congress that assembled 
under our present form of government. The first standing com- 
mittee of the house of representatives was constituted to assist the 
house in the execution of this power. It was the committee of 
elections, and was chosen by ballot on the 13th day of April, 1789. 
The severity of the labors which have devolved upon that com- 
mittee for many years shows how important an element has been 
contributed to the constitution of the house by this provision of 
the organic law. 

§ 1048. But the house possesses another power to decide who 
shall and who shall not hold seats in that body. It is altogether 
distinct, in origin and character, from the power to judge of the 
elections, returns, and qualifications of its members. It is the 
power of expulsion, which requires a two-thirds' vote for its exer- 
cise. It is conferred by the following clause of the constitution : 
" Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the concurrence 
of two-thirds, expel a member." The difference, in character, 
between the power to judge of the elections and qualifications of 
members of the house, and the power of expulsion, is broad and 
marked. In the former case the house is absolutely restricted to 
three clearly-defined points of inquiry : First. Is the claimant of 
the seat duly returned ? Second. Is he duly elected ? Third. 
Does he possess all the qualifications for membership which are 
prescribed by the constitution of the United States % And the 
jurisdiction of the committee of elections over cases referred by 
the house is ordinarily restricted to these three inquiries. But 
the power of expulsion is wholly different. It touches no question 
of elections, returns, or constitutional qualifications. The regular- 
ity of the return, the validity of the election, and the constitu- 
tional qualifications of the representative, are alike impotent 
defences against the resolution of expulsion. 1 

1 A careful examination of the journals closes no cases of expulsion, except those 
of the house, from the organization of of J. B. Clarke, J. W. Reid, and H. C. 
the government to the present time, dis- Burnett, who, having joined the con- 



873 



§ 1049. The power of expulsion is vested, by the constitution 
of the United States, in the senate and house of representatives 



federate army, were expelled in 1861. 
The expulsion of 0. B. Matteson from 
the 34th, and of B. F. Whittemore from 
the 41st, congress was prevented by their 
resignation, at the last moment, before 
the vote was taken. 

The case of B F. Whittemore, in the 
forty -first congress, has been relied upon 
as an authority for the refusal to admit 
a representative elect on other grounds 
than mere constitutional disqualifica- 
tions. But a critical examination of that 
case will show that the house only de- 
cided that a representative, who had, 
by resignation, escaped expulsion from 
that house, should not be readmitted to 
the same house. Mr. Whittemore, hav- 
ing avoided expulsion for the alleged 
sale of a cadetship, by resignation, tend- 
ered just before the final vote on the 
case, was re-elected to the same house. 
His credentials were referred to the com- 
mittee on military affairs, who had 
investigated his alleged offences, and 
had reported the resolution of expul- 
sion. Mr. Logan presented the report of 
the committee, recommending that Mr. 
Whittemore should not be admitted to 
his seat. He alone spoke in favor of the 
report. He took the ground that an ex- 
pulsion, for an infamous crime, was valid 
for an entire congress, and that, although 
a subsequent house could not refuse to 
admit a representative elect, on account 
of an expulsion by the house of repre- 
sentatives of the forty-first congress, yet 
that house itself, during its existence, 
could constitutionally refuse to readmit 
a man whom, for an infamous crime, it 
had or, but for his resignation, would 
have, expelled. 

The case of John Wilkes, in the house 
of commons of England, was cited, in 
the brief discussion in the case of Mr. 
Whittemore. That case, and the still 
earliei case of Sir Robert Walpole, in 
view of the magnitude of the questions 



involved, the energy with which they 
stirred the popular heart of England, 
and the illustrious qualities of the states- 
men who took part in them, will doubt- 
less continue to be the great leading 
cases, on the question now under con- 
sideration, amongst all English-speaking 
races, maintaining parliamentary gov- 
ernments, for centuries to come. The 
constitutional principle of the case was, 
after thirteen years of struggle, settled 
on the day it terminated. The principle 
is, that a member of the house of com- 
mons cannot, on re-election, be rejected 
on the ground of previous expulsion, 
even from the same parliament. And it 
is to be remembered that the powers of 
the house of commons, under the un- 
written British constitution, are even 
broader than the powers of the American 
house of representatives. 

Mr. Wilkes was expelled from the house 
of commons of England on the 19th day 
of January, 1764, by the adoption of the 
following resolution : 

" Resolved, That it appears to this 
house that the said John Wilkes, Esq., 
is guilty of writing and publishing the 
paper intituled ' The North Briton, No. 
45,' which this house has voted to be a 
false, scandalous, and seditious libel, 
containing expressions of the most unex- 
ampled insolence and contumely towards 
his majesty, the grossest aspersions upon 
both houses of parliament, and the most 
audacious defiance of the authority of 
the whole legislature ; and most mani- 
festly tending to alienate the affections 
of the people from his majesty, to with- 
draw them from their obedience to the 
laws of the nation, and to incite them to 
traitorous insurrections against his maj- 
esty's government. 

" Resolved, That the said John Wilkes, 
Esq., be, for his said offence, expelled 
this house." 

Mr. Wilkes was elected March 28, 1768, 
a member of the thirteenth parliament 
of England, which met at Westminster, 
on the tenth day of May, 1768. The ses- 



874 



respectively, and, by the state constitutions, in the respective 
houses of the state legislatures. In England the power of expulsion 



sion was a short one. At the second 
session, which commenced on the eighth 
day of November, 1768, a motion was 
made for the expulsion of Mr. Wilkes. 
The motion was made by Lord Barring- 
ton on the third day of February, 1769, 
and carried on the same day. It was 
predicated, in part, on the grounds of his 
former expulsion, but mainly on new 
facts. It was in these words : 

'' That John Wilkes, Esq., a member 
of this house, who has, at the bar of 
this house, confessed himself to be the 
author and publisher of what this house 
has resolved to be an insolent, scanda- 
lous, and seditious libel, and who has 
been convicted in the court of king's 
bench of having printed and published 
a seditious libel, and three obscene and 
impious libels, and by the judgment of 
the said court has been sentenced to un- 
dergo 22 months' imprisonment, and is 
now in execution under the said judg- 
ment, be expelled from this house." 

Among those who debated this motion 
was George Grenville. His speech (16 
Hansard, 559) merits consideration for 
two reasons. In the first place, it em- 
braces an exhaustive and masterly state- 
ment of the real character of the power 
to admit, reject, and expel members 
secured to the house of commons, under 
the unwritten constitution of England ; 
and then it also contains an able and com- 
plete statement and discussion of the 
earlier case of Robert Walpole, expelled 
for an infamous crime in January, 1712, 
and admitted a few months afterwards 
to a new parliament. 

Mr, Grenville said : 

' ' But it has been urged, whatever may 
be the case , in point of power, in regard to 
the several articles contained in this ques- 
tion, whether taken together as an accu- 
mulated and complicated charge, or con- 
sidered separately and distinctly, yet this 
house must necessarily be the judges 
whether any member of their own is or is 
not a fit person to sit amongst them ; and 
it has been argued that if the last parlia- 
ment thought him unfit, the present has 



certainly an equal right to adjudge that he 
is so. It has been asked,what merit he has 
had, since that time, to recommend him, 
and to induce the present parliament to 
think him a properer man to sit amougst 
them than he was to sit among their pre- 
decessors ? This would, indeed, be a con- 
clusive argument, if we really had that 
discretionary power of excluding all those 
whom we think proper, upon which it is 
founded. But we have no such general 
authority vested in us, nor is there a sin- 
gle precedent where we have pretended 
to exercise it. Whenever this house has 
expelled any member, it has invariably 
assigned some particular offence as the 
reason for such expulsion. By the fun- 
damental principles of this constitution 
the right of judging upon the general 
propriety, or unfitness of their repre- 
sentatives is entrusted with the electors, 
and, when chosen, this house can only 
exclude or expel them for some disability, 
or for some specific offence alleged and 
proved. If it were otherwise, we should, 
in fact, elect ourselves, instead of being 
chosen by our respective constituents. 

" If I had been one of the electors for 
the county of Middlesex, I should have 
shown by my vote, the opinion which I 
entertained with regard to the conduct 
and character of Mr. Wilkes, and to the 
propriety of choosing him a knight of 
the shire for that county. I had not only 
a right, but it would have been my duty, 
to have manifested that opinion. But 
when he is chosen and returned hither, 
my duty is widely different. We are 
now acting in our judicial capacity, and 
are therefore to found the judgment 
which we are to give, not upon our pri- 
vate belief . or arbitrary opinions, but 
upon specific facts, alleged and proved, 
according to the established rules and 
course of our proceedings. When we 
are to act as judges, we are not to assume 
the characters of legislators, any more 
than the court of king's bench, who 
were bound to reverse Mr. Wilkes's out- 
lawry, if they found any irregularity in 
it, though possibly they were convinced 
in their private opinions, that it would 
have been more beneficial to the state to 
have confirmed it. If we depart from 
this principle, and allow ourselves a lati- 
tude in questions of this nature ; if we 
are to admit those whom we think most 
proper, and expel those whom we think 



875 

belongs to the house of commons. Members of the house of com- 
mons have been expelled for rebellion, perjury, forgery, libel, 



most improper, to what lengths will not 
this doctrine carry us ? There never was 
a parliament chosen into which there 
were not some persons elected whom the 
greater part of the house thought un- 
worthy of that honor — I speak of former 
parliaments — and it becomes us to be 
careful that posterity should not speak 
still worse of us. Let me suppose for a 
moment that this were true, to a certain 
degree, even in the present parliament, 
and that it were carried still further, 
from party prejudice or from motives 
less defensible. This would, indeed, be 
the sure means of purging the house 
effectually from all ill humors within 
these walls, and of dispersing them at 
the same time throughout every corner 
of the kingdom. But if this summary 
mode of reasoning was really meant to 
be adopted, there was certainly no occa- 
sion for our sitting four or five days and 
nights together, to decide a question 
which might as well have been deter- 
mined in so many minutes. I cannot, 
therefore, bring myself to think that any 
gentleman will avow the proposition to 
this extent. 

" But perhaps some may wish to shelter 
themselves under the other part of the 
argument, and may contend that a man, 
who has been expelled by a former house 
of commons cannot, at least in the judg- 
ment of those who concurred in that 
sentence, be deemed a proper person to 
sit in the present parliament, unless he 
has some pardon to plead, or some merit 
to cancel his former offences. They will 
find, upon examination, that this doc- 
trine is almost as untenable as the other. 
Votes of censure, and even commitments, 
by either house of parliament acting in 
that capacity only, determine, as it is 
well known, with the session. There are 
indeed some instances where, in matters 
of contempt and refusal to submit to the 
orders of the house, the proceeding has 
been taken up again in a following ses- 
sion. But to transfer an expulsion from 
one parliament, and, by this means, to 
establish a perpetual incapacity in the 
party so expelled, which must be the 
consequence of it — as this objection will 
hold equally strong in any future parlia- 
ment as in the present — this, I say, would 
be contrary to all precedent and ex- 
ample, and inconsistent with the spirit 
of the constitution. I could cite many 



precedents to prove the first part of my 
assertion ; but one alone will be sufficient 
for my purpose, because that is so signal 
and so memorable in all as to render any 
confirmation or enforcement of it quite 
unnecessary. In quoting this precedent 
I beg leave to say that I do not intend 
to throw any imputation on any person 
whatever. I neither mean to acquit, or 
condemn, those who were parties to it, 
but merely to state the fact, as it ap- 
pears from your journals, and then to 
submit the result of it to the judgment 
of those who hear me. 

' ' The case I allude to was that of Mr. 
Walpole, who was afterwards first minis- 
ter to King George I, and King George 
II, for the term of twenty years and up- 
wards. On the seventeenth of January, 
1711-12, he was voted, by the house of 
commons, guilty of a high breach of 
trust and notorious corruption, in receiv- 
ing the sum of five hundred guineas, and 
taking a note for five hundred pounds 
more, on account of two contracts made 
by him when secretary of war, pursuant 
to a power granted by the lord treasurer, 
and for this offence he was committed 
prisoner to the tower and expelled the 
house. He was immediately re-elected, 
but declared incapable of being chosen, 
during that parliament. However, on 
the dissolution of it, a year and a half 
afterwards, he was chosen into the new 
parliament, was admitted to take his 
seat, without the least question, or ob- 
jection, on account of his former expul- 
sion, and continued a member of the 
house of commons, in every subsequent 
parliament, till the year 1742, when he 
was created Earl of Orford. It cannot 
be denied that the offence was, in its 
nature, infamous, and such a one as ren- 
dered the person guilty of it unfit to be 
trusted with the power to give, or to 
manage, the public money. The same 
party that expelled him, whose enmity 
was aggravated by his great talents and 
knowledge of business, continued equally 
adverse to him, and equally prevalent in 
the new parliament ; but, however desir- 
ous they were to get rid of him, and 
however violent upon many other occa- 
sions, yet in the very zenith of their 
power, they did not dare to set up this 
pretence, or to urge the expulsion of a 
former parliament, although not two 
years before, as a sufficient ground for 



876 

fraud, breach of trust, misappropriation of public money, con- 
spiracy to defraud, corruption in the administration of justice, or 



re-expelling or declaring him incapable 
of sitting in a new parliament. If this 
could have been attempted, every cir- 
cumstance concurred to make them wish 
it. The crime itself was breach of trust 
and notorious corruption, in a public 
officer relative to public money, an 
offence in the eye of parliament certainly 
not less infamous or less criminal than 
writing and publishing a seditious libel. 
Few, if any, were more obnoxious, or 
more formidable, to them than the gen- 
tleman who had been the object of their 
justice or resentment. The heat of party 
rage had been pleaded in excuse, if not 
in justification, of many extravagancies 
on both sides ; but they thought this 
measure beyond the mark of a common 
violence, and therefore dared not attempt 
it. I have said before that it was not my 
intention to approve or to blame the cen- 
sure that passed upon that extraordinary 
man. 

" It was the subject of great discussion 
and altercation at the time. I do not 
wish to revive past heats. The present 
are more than sufficient, and all wise 
and good men should endeavor, by jus- 
tice and moderation, to allay them. Let 
us suppose that he was guilty or inno- 
cent of the charge to the utmost extent, 
and then let us consider how the case 
will apply to that part of the question 
which is now before us. The crime, as 
it related to a fraud concerning the pub- 
lic revenue, was certainly under the im- 
mediate cognizance of this house, and 
was, perhaps, punishable in no other 
manner. They punished it as severely 
as they could, both by imprisonment 
and expulsion, the former of which 
ended in a few months, and the conse- 
quence of the latter in a year and a 
half. If he was guilty of a high breach 
of trust and notorious corruption, he 
was certainly very unfit to be invested 
with the most sacred trust in this king- 
dom, that of a member of the legislature. 
Had the question been asked upon that 
occasion likewise, what merit he had, 
after his first expulsion, to recommend 
him to the subsequent parliament, the 
answer must have been, that he had 
persisted in justifying what he had done ; 
that he had appealed, not only to his 
electors, but to the world at large, in 
more than one printed pamphlet, accus- 
ing the house of commons, which had 



condemned him, of violence and injus- 
tice. With all these aggravations, and 
with every other inducement, what 
could have protected him, — what could 
have prevented his expulsion, but the 
notoriety and the certainty that such a 
measure was not consistent with the 
known law and usage of parliament, 
even when exerted against a guilty and 
obnoxious man ? This is the state of the 
argument upon that supposition. But, 
if we take the other part of the alterna- 
tive, and suppose that he was innocent 
of the charge, the proposition would 
be much stronger. We must, then, con- 
sider him in the light of a man expelled 
by party rage, or on worse motives, not 
for his crimes, but for his merit ; not 
that he was unfit, but that he was too 
well qualified for the trust reposed in 
him. What would have been the conse- 
quence if this doctrine of transferring 
the disability incurred by a former sen- 
tence to a subsequent parliament had 
been then established ? The public and 
this house would have been deprived 
forever of those services which, from 
his knowledge and talents, they had a 
right to expect, and which they so much 
relied upon, particularly in the impor- 
tant business of the finances of this king- 
dom ; and that gentleman and his fam- 
ily would have been precluded, irrepara- 
bly precluded, by an unjust judgment, 
from those great emoluments and high 
honors which were conferred upon him 
by two successive kings, as the rewards 
of his administration. 

" That loss, however, would have been 
the misfortune of the individuals ; but 
a much more extensive misfortune would 
have befallen the parliament and the con- 
stitution if so dangerous a precedent had 
taken place. An easy and an effectual 
plan would have been marked out to ex- 
clude from this house forever, by an un- 
just vote once passed, any member of it 
who should be obnoxious to the rage of 
party or to the wantonness of power. 
Let not your prejudices, let not your just 
resentments against the conduct and 
character of the man, who is now an 
object of your deliberation, prevail upon 
you to ground any part of your pro- 
ceedings upon such destructive and fatal 
principles. Consider that precedents of 
this nature are generally begun, in the 
first instance, against the odious and 



877 



in public offices, or in the execution of their duties as members of 
the house, conduct unbecoming the character of an officer and 



guilty, but, when once established, are 
easily applied to and made use of against 
the meritorious and the innocent ; that 
the most eminent and best deserving 
members of the state, under the color 
of such an example, by one arbitrary 
and discretionary vote of one house of 
parliament (the worst species of ostra- 
cism), may be excluded from the rights 
of every subject of the realm, not for a 
term of years alone, but forever." 

The resolution of expulsion having 
been adopted on the third day of Feb- 
ruary, 1769, on the sixteenth day of the 
same month Mr. Wilkes was unanimously 
re-elected to the thirteenth parliament. 

On the next day (February 17) Lord 
Strange submitted to the house of com- 
mons the following motion : 

" That John Wilkes, Esq. , having been 
in this session of parliament expelled 
this house, was and is incapable of being 
elected a member to serve in this pres- 
ent parliament." 

The motion was carried on the same 
day. In its support it was said that, 
when a member was once expelled, it was 
the undoubted law of parliament not to 
admit that person to sit again in the 
same parliament ; and the case of Rob- 
ert Walpole was cited in support of this 
position. The journals of the house 
were consulted, and showed the follow- 
ing entry in Walpole's case : 

" That Sir Robert Walpole, being ex- 
pelled for bribery and corruption, is not 
capable of sitting in this parliament." 
16 Hans. 579. 

On the sixteenth of the next month 
(March, 1769) Mr. Wilkes was elected to 
the thirteenth parliament, for the third 
time. His election was unanimous. On 
the next day, March 17, 1769, the follow- 
ing resolution was adopted : 

" Mesolved, That the election and re- 
turn of John Wilkes, Esq., who hath 
been by this house adjudged incapable 
of being elected a member to serve in 
this present parliament, are null and 
void." 16 Hans. 581. 



On the thirteenth day of April, 1769, 
Mr. Wilkes was elected to the thirteenth 
parliament, for the fourth time. He re- 
ceived 1,143 votes, and his competitor, 
H. L. Luttrell, 296 votes. On the next 
day, April 14, 1769, Mr. Wilkes' election 
was declared void, by a vote of the house, 
and, on the fifteenth, a motion to seat 
his competitor was carried by a vote of 
197 to 143. The advocates of this motion, 
in the house, took the ground that the 
previous action of the house had ren- 
dered Mr. Wilkes ineligible to a seat in 
that parliament, and had, at the same 
time, sufficiently notified the electors of 
Middlesex of such ineligibility, so that all 
votes cast for him were nullities, and the 
votes cast for Mr. Luttrell were to be 
regarded as the only legal votes cast at 
the election. 

Among the opponents of this motion 
were Mr. Beckford, Sergeant Glynn, Mr. 
Burke, and Mr. Grenville. Mr. Beckford 
insisted that all the precedents, which 
had been cited in support of the measure, 
were cases of persons disqualified by act 
of parliament, and consequently were 
inapplicable to the case of Mr. Wilkes, 
whose alleged disqualification was cre- 
ated by a vote of the house of commons 
alone. Sergeant Glynn spoke very ably, 
taking the ground that, the disqualifica- 
tion of Mr. Wilkes not being the law of 
the land, the electors of Middlesex were 
under no obligation to take notice of it. 
Mr. Grenville made, in opposition to the 
motion, one of the ablest speeches that 
had been made in the house of commons 
for many years. He concluded that a 
vote of the house might and did bind the 
house for the session in which it was 
taken, but that out of the house, except 
in matters of privilege, it had no effect 
. on the people. 

Mr. Burke drew a moving picture of 
the consequences to be dreaded from the 
measure, showing that it was not, as had 



878 



a gentleman, and for various offences committed against the house 
itself. 1 Tampering with counsel of an opponent, in a contested 
election case, is a sufficient ground for expulsion. 3 



been represented, a dispute between the 
house and the electors of Middlesex, but 
between the house and all the voters in 
England, who would easily perceive their 
franchises invaded by this vote. 

On the thirtieth day of September, 
1774, the thirteenth parliament was dis- 
solved, by royal proclamation. The 
fourteenth parliament met two months 
later, on the twenty- ninth day of No- 
vember, 1774. Mr. Wilkes .was elected 
a member of the fourteenth parliament, 
and took his seat without question or ob- 
jection. He was at the time also lord 
mayor of London. He had been elevated 
to that honor by the persecutions of the 
house of commons. He remained in 
parliament for many years, and, in 1782, 
after the lapse of eight years from the 
time when he took his seat, he succeeded 
in carrying a motion to expunge the res- 
olution of February 17, 1769, declaring 
him ineligible to the thirteenth parlia- 
ment on account of a previous expulsion 
by the same parliament. Mr. Wilkes 
had, without success, made repeated an- 
nual motions to expunge this resolution. 
On the third day of May, 1782, he re- 
newed the motion, and closed his speech 
in support of it in these words : 

' ' I will not detain the house longer 
than by moving that the entry in the 
journal of the house of the seventeenth 
of February, 1769, of the resolution 
' That John Wilkes, Esq. , having been 
in this session of parliament expelled 
this house, was and is incapable of being 
elected a member to serve in this present 
parliament,' may be read." 

The same having been read, Mr. Wilkes 
next moved — 

" That the said resolution be expunged 
from the journals of this house, as being 
subversive of the rights of the whole 
body of electors of this kingdom." 



After debate the house divided, and 
there appeared for expunging 115, 
against it 47. The resolution was ac- 
cordingly expunged by the clerk. The 
following resolution was then adopted : 

' ' That all the declarations, orders, and 
resolutions of this house respecting the 
election of John Wilkes, Esq., for the 
county of Middlesex, as a void election, 
the due and legal election of Henry 
Luttrell, Esq., into parliament for the 
said county, and the incapacity of John 
Wilkes, Esq., to be elected a member to 
serve in said parliament, be expunged 
from the journals of this house, as being 
subversive of the rights of the whole 
body of electors of this kingdom." 

And the same were accordingly ex- 
punged at the table by the clerk. 

On the twenty-seventh of February, 
1857, Hon. Orsamus B. Matteson, a 
representative in the thirty-fourth con- 
gress from the state of New York, re- 
signed his seat, pending the following 
resolutions, reported by a committee of 
investigation : 

' ' Resolved, That Orsamus B. Matteson, 
a member of this house from the state 
of New York, did incite parties deeply 
interested in the passage of a joint reso- 
lution for construing the Des Moines 
grant to have here and to use a large sum 
of money and other valuable considera- 
tions corruptly, for the purpose of pro- 
curing the passage of said joint resolution 
through this house. 

"Resolved, That Orsamus B. Matteson, 
in declaring that a large number of the 
members of this house had associated 
themselves together, and pledged them- 
selves each to the other not to vote for 
any law or resolution granting money or 
lands unless they were paid for it, has 
falsely and wilfully assailed and defamed 
the character of this house, and has 
proved himself unworthy to be a mem- 
ber thereof. 

"Resolved, That Orsamus B. Matteson. 
a member of the house from the state of 



5 May Pari. Pr. 62. 



2 Bowen v. De Large, Smith, 99. 



879 



§ 1050. On the 9th day of April, 1808, the senate, by a vote of 
nineteen yeas, to ten nays, rejected the following resolution, which 



New York, be, and he is hereby, expelled 
therefrom." 

The first and second resolutions were 
adopted ; but Mr. Matteson having re- 
signed his seat, the third was laid on 
the table. 

Upon the organization of the house of 
representatives on the seventh day of 
December, 1857, Mr. Matteson took his 
seat, as a representative in the thirty- 
fifth congress. No question as to his 
election, return, or qualifications was re- 
ferred to the committee of elections, or 
even raised in the house. But on the 
fifteenth day of January, 1858, the fol- 
lowing resolution was introduced : 

" Whereas, at the last session of con- 
gress, a select committee of this house 
reported the following resolutions, to 
wit (the resolutions above quoted): 

" And whereas, the first of said reso- 
lutions was adopted by the house of rep- 
resentatives, on the twenty-seventh of 
February last, by a vote of 145 yeas to 
17 nays ; and the said second resolution 
was adopted by the house on the same 
day without a division ; and whereas, 
said Matteson had, prior to any vote be- 
ing taken on the last resolution, resigned 
his seat in the house, and thus avoided 
the effect of the same ; and whereas the 
said Matteson is a member of this house 
with the imputations conveyed by the 
passage of the first two of the forego- 
ing resolutions still upon him, and with- 
out having been subsequently endorsed 
by his constituents ; therefore, 

"Resolved, That Orsamus B. Matteson, 
a member of this house from the state of 
New York, be, and he is hereby, expelled 
from this house." 

This resolution was referred to a se- 
lect committee, who reported back the 
resolutions with the following recom- 
mendation : 

' ' Resolved, That it is inexpedient for 
this house to take any further action in 
regard to the resolution proposing to 
expel 0. B. Matteson." 

The case of Mr. Matteson in the thirty- 
fifth congress was a case arising, not 



under the clause of the constitution 
which makes each house the judge of the 
elections, returns, and qualifications of 
its members, but under that clause which 
confers the power of expulsion. On the 
twenty-second day of March, 1858, Mr. 
Seward, of Georgia, submitted the report 
of the select committee to the house. In 
this report the committee said that it 
was necessary, at the outset, to ascertain 
whether Mr. Matteson was constitu- 
tionally or legally disqualified for the 
office of representative. They cited that 
section of the constitution which pro- 
vides that "ne person shall be a repre- 
sentative who shall not have attained 
the age of twenty-five years, and have 
been seven years a citizen of the United 
States, and who shall not, when elected, 
be an inhabitant of that state in which 
he shall be chosen." They said that it 
had not been claimed that Mr. Matteson 
was ineligible because wanting in either 
of the qualifications thus prescribed, or 
that any statutory disqualification at- 
tached to him, and that Mr. Matteson, 
being thus eligible, had been admitted 
to his seat in the house upon taking the 
usual oath of office ; that the house was 
called upon to expel Mr. Matteson for 
causes alleged to have arisen prior to 
the term of the thirty -fifth congress. It 
seemed to the committee indisputable 
that Mr. Matteson's right to his seat was 
wholly unaffected by the proceedings 
which had taken place on the resolution 
for his expulsion in the thirty-fourth 
congress. They held that the power of 
the house of representatives of each 
congress was ample and complete to 
punish its members for disorderly be- 
havior, and for any misconduct incon- 
sistent with the character of a represent- 
ative of which they might be guilty 
while members thereof ; that this power 
was not left to uncertainty ; that it was 
not necessary to invoke any inherent 



880 

had been reported by a select committee, on the 31st day of De- 
cember, 1807 : " Resolved, That John Smith, a senator from the 



power as incident to legislative bodies ; 
that no such power belonged to congress, 
whatever might belong to the legislatures 
of the states ; that the powers and privi- 
leges of the house had been denned in 
the constitution by the people ; that the 
exercise of other powers would be a 
violation of their rights ; that the expul- 
sion of Mr. Matteson would be but the 
entering upon a fearful contest with the 
American people to deprive them of their 
rights and privileges ; that the exercise 
of such a power by the house would be 
a flagrant usurpation of power never 
granted to that body, and would ulti- 
mately annihilate the power of the peo- 
ple in the choice of their representatives ; 
that it was a question of usurpation on 
the one side and American freedom upon 
the other. The committee reported (as 
already stated) that it was inexpedient 
for the house to take any further action 
in regard to the resolutions. 

Mr. Curtis submitted his views, dis- 
senting on some points from the report 
of the committee. Conceding the cor- 
rectness of the decision of the house of 
commons in Wilkes' case ; and also that 
when a disability had been adjudged by 
the house, and the people, after publicity 
had been given to the judgment of the 
house, had again returned the member, 
the house would ordinarily take no fur- 
ther notice of disqualifications which a 
constituency was willing to tolerate ; yet 
he thought that Mr. Matteson, after a fair 
trial de novo on the charges which had 
been preferred against him in the thirty- 
fourth congress, ought to receive such 
punishment as the result of the trial 
should show to be right and proper in the 
case. 

But the house sustained the report of 
the committee, and declined to take any 
further action on the resolutions for the 
expulsion of Mr. Matteson. 

Benj. G. Harris, of Mary land, was a rep- 



resentative in the thirty-ninth congress, 
his term of office commencing on the 
fourth day of March, 1865. On the second 
day of May, 1865, he was arraigned, in 
the city of Washington, before a court- 
martial, on a charge of violating the fifty- 
sixth article of war, on the twenty-sixth 
day of April, 1865, by harboring and pro- 
tecting and furnishing with money and 
lodging two rebel soldiers, at Leonard- 
town, Maryland, and advising and incit- 
ing them to continue in the rebel army, 
and to make war upon the United States, 
and emphatically declaring his sympathy 
with the enemy, and his opposition to 
the government of the United States in 
its efforts to suppress the rebellion. On 
the twelfth day of May, 1865, he was 
found guilty, and the sentence of the 
court was in these words : 

" And the court do therefore sentence 
the accused, Benjamin G. Harris, as 
follows : to be forever disqualified from 
holding any office or place of honor, 
trust, or profit under the United States, 
and to be imprisoned for three years in 
the penitentiary at Albany, New York, 
or at such other penitentiary as the sec- 
retary of war may designate." 

On the thirty-first day of May, 1865, 
this sentence was approved and con- 
firmed, and also remitted by president 
Johnson, and Mr. Harris was released 
from imprisonment. At the commence- 
ment of the session, in December, 1865, 
Mr. Harris, upon taking the iron-clad 
oath, was admitted to his seat in the 
house of representatives. 

On the nineteenth day of December, 
1865, Mr. Farnsworth introduced the 
following resolution : 

' ' Whereas it is alleged that Benjamin 
G. Harris, a representative in this house 
from the fifth district of the state of 
Maryland, was, in the month of May 
last, before a very respectable and intel- 
ligent court-martial, tried and by said 
court convicted upon charges and speci- 
fications, to wit, violation of the fifty- 



881 



state of Ohio, by his participation in the conspiracy of Aaron 
Burr, against the peace, union, and liberties of the people of the 
United States, has been guilty of conduct incompatible with 
his duty and station as a senator of the United States, and 
that he be therefor, and hereby is, expelled from the senate of 
the United States." 1 On the 11th day of July, 1861, Senators Mason, 



sixth article of war, by giving aid and 
comfort to the public enemy, and incit- 
ing them to continue to make war 
against the United States, declaring his 
sympathy with the enemy, and his op- 
position to the government of the United 
States in its efforts to suppress the re- 
bellion ; and whereas it was proved at said 
trial (as is alleged) that the said Harris 
expressed his regret that the assassina- 
tion of president Lincoln came too late 
to be of any use to the rebels, and at the 
same time declared that Jeff. Davis was 
a great and good man ; all of which acts. 
on the part of said Harris, are inconsist- 
ent with the oath he has taken as a mem- 
ber of this house ; and whereas the said 
court-martial sentenced the said Harris 
(among other things) to be forever dis- 
qualified to hold any office of honor, 
trust, or profit under the United States, 
which sentence was approved by the 
president ; therefore 

" Resolved^ That the committee of elec- 
tions be directed to inquire into the facts 
of the case, and that they report the 
same to the house, together with such 
action as said committee shall recom- 
mend ; and, in making their investiga- 
tions, said committee to have power to 
send for persons and papers." 

This resolution was adopted. On the 
next day, December 20, on motion of Mr. 
Dawes, a resolution was adopted instruct- 
ing the secretary of war to communicate 
to the house a copy of the record, testi- 
mony, finding, sentence, and action of 
the president in the case. On the fifth 
of January, 1866, the secretary of war 
complied fully with the requirements of 
the resolution by communicating to the 
house executive document No. 14 of the 
first session of the thirty-ninth congress. 

The committee of elections never made 
any report, and the house never took any 
further action in the case.. 

On the fifteenth of May, 1856, Mr. 
Knowlton introduced a resolution refer- 

56 



ring to the homicide of Thomas Keating, 
at Willard's hotel, on the eighth of the 
same month, by Mr. Herbert, a repre- 
sentative from the state of California, 
and instructing the committee on the 
judiciary to take the case into consider- 
ation, with power to send for persons and 
papers, and to report what action the 
house should take in the premises. 

The house refused to entertain the 
proposition. This all occurred at the 
first session of the thirty-fourth congress. 
At the third session a petition was sent 
to the house, signed by many citizens of 
California, declaring their belief that, in 
the murder of Keating, Mr. Herbert had 
committed an act entirely without justi- 
fication, had disgraced his high position, 
and that he could no longer satisfactorily 
represent his constituents, in the house 
of representatives, and asking that, in 
the event of his acquittal by the court, 
he should be expelled from the house. 
This petition was referred to the com- 
mittee of elections. On the twenty- 
fourth day of February, 1857, Mr. Colfax 
submitted the report of the committee. 
The committee, without making any rec- 
ommendation, concluded their report in 
these words : 

"Tour committee, therefore, report 
the character of the petition, the state- 
ments embodied in it, and the number of 
its signers, that the house may deter- 
mine what action under the circum- 
stances they may deem just to all con- 
cerned." 

The house took no action whatever in 
the case, and Mr. Herbert continued to 
be a member of the house until the ex- 
piration of the thirty-fourth congress. 

Smith's case, Taft, 79. 



882 

Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mit- 
chell, Hemphill, and Wigfall were expelled from the senate, on the 
ground that it was apparent that those senators were engaged in 
the conspiracy for the destruction of the union, or, with full 
knowledge of the conspiracy, had failed to advise the government 
of its progress, or to aid in its suppression. 1 On the 10th of Jan- 
uary, 1862, resolutions were unanimously adopted, by the senate, 
expelling Trusten Polk and Waldo P. Johnson from the senate 
of the United States. 3 On the 5th of February, 1862, the senate, 
by a vote of 32 to 14, adopted the following resolution : "Whereas 
the Hon. Jesse D. Bright heretofore, on the 1st day of March, 
1861, wrote a letter, of which the following is a copy : 'Washing- 
ton, March 1, 1861. My dear Sir : Allow me to introduce to 
your acquaintance my friend Thomas B. Lincoln of Texas. He 
visits your capital mainly to dispose of what he regards a great 
improvement in fire-arms. I commend him to your favorable con- 
sideration as a gentleman of the first respectability and reliable 
in every respect. Yery truly yours, Jesse D. Bright. His excel- 
lency Jefferson Davis, President of the Confederation of States.' 
Therefore, Resolved, That the said Jesse D. Bright be expelled 
from his seat in the senate of the United States." 3 

§ 1051. On the 8th of July, 1797, the senate, by a vote of 
twenty-five yeas to one nay, " Resolved, That William Blount, Esq., 
one of the senators of the United States, having been guilty of a 
high misdemeanor entirely inconsistent with his public trust and 
duty, as a senator, be, and he hereby is, expelled from the senate 
of the United States." 4 

3 Expulsion of Senators, Taft, 195. The diana, McDougall, Morrill, Pomeroy, 

resolution was subsequently rescinded as Sherman, Simmons, Sumner, Trumbull, 

to Mr. Sebastian. Wade, Wilkinson, Wilmot, Wilson of 

2 Polk and Johnson, Cases of, Taft, 213, Massachusetts, and Wilson of Missouri ; 
215. and the nays, Messrs. Bayard, Carlisle, 

3 Bright's case, Taft, 217. The com- Cowan, Harris, Kennedy, Latham, Nes- 

mittee on the judiciary consisted of mith, Pearce, Powell, Bice, Saulsbury, 

Messrs. Trumbull, Foster, Ten Eyck, Ten Eyck, Thompson, and Willey. 

Cowan, Harris, Bayard and Powell. On 4 Blount's case, Taft, 74. The ground 

the resolution of expulsion the votes of Mr. Blount's expulsion was the f ollow- 

were : yeas, Messrs. Anthony, Browning, ing letter : 

Chandler, Clark, Collamer, Davis, Dix- ~ 

; ' ' ' Colonel King's Iron Works, 

on, Doohttle, Fessenden, Foot, Foster, April 21 1797. 

Grimes, Hale, Harlan, Henderson, How- Dear Carey : I wished to have seen 

ard, Howe, Johnson, King, Lane of In- you before I returned to Philadelphia ; 



883 



§ 1052. Senator Humphrey Marshall, of Kentucky, having been 
charged, by two of the judges of the court of appeals of that State, 
with the commission of fraud and perjury before his election, an 



but I am obliged to return to the session 
of congress, which commences on the 
15th of May. 

Among other things that I wished to 
have seen you about was the business 
Captain Chisholm mentioned to the 
British minister, last winter, at Phila- 
delphia. 

I believe, but am not quite sure, that 
the plan then talked of will be attempted 
this fall ; and if it is attempted, it will 
be in a much larger way than then talked 
of, and, if the Indians act their part, I 
have no doubt but it will succeed. A 
man of consequence has gone to England 
about the business, and if he makes ar- 
rangements, as he expects, I shall my- 
self have a hand in the business, and 
probably shall be at the head of the 
business on the part of the British. You 
are, however, to understand that it is 
not yet quite certain that the plan will 
be attempted ; yet you will do well to 
keep things in a proper train of action in 
case it should be attempted, and to do 
so will require all your management, — I 
say require all your management because 
you must take care, in whatever you say 
to Bogers, or anybody else, not to let 
the plan be discovered by Hawkins, Dins- 
more, Byers, or any other person in the 
interest of the United States, or Spain. 

If I attempt this plan, I shall expect 
to have .you and all my Indian country 
and Indian friends with me ; but you are 
now in good business, I hope, and you 
are not to risk the loss of it, by saying 
anything that will hurt you, until you 
again hear from me. Where Captain Chis- 
holm is I do not know ; I left him in 
Philadelphia in March, and he fre- 
quently visited the minister and spoke 
upon the subject ; but I believe he will 
go into the Creek nation, by way of 
South Carolina, or Georgia. He gave 
out he was going to England ; but I did 
not believe him. Among other things 
that you may safely do will be to keep up 
my consequence with Watts and the 
Creeks and Cherokees generally ; and 
you must by no means say anything in 
favor of Hawkins, but, as often as you 
can, with safety to yourself, you may 
teach the Creeks to believe he is no better 
than he should be. Any power, or con- 
sequence, he gets will be against our 
plan. Perhaps Bogers, who has no of- 



fice to lose, is the best man to give out 
talks against Hawkins. Bead the letter 
to Bogers, and if you think it best to 
send it to him, put a wafer in it and for- 
ward it to him, by a safe hand ; or per- 
haps you had best send for him to come 
to you, and speak to him yourself respect- 
ing the state and prospect of things. 

I have advised you in whatever you do 
to take care of yourself. I have now to 
tell you to take care of me, too, for a 
discovery of the plan would prevent the 
success and much injure all the parties 
concerned. 

It may be that the commissioners may 
not run the line, as the Indians expect, 
or wish, and, in that case, it is probable 
the Indians may be taught to blame me 
for making the treaty. To such com- 
plaints against me, if such there are, it 
may be said, by my friends, at proper 
times and places, that Doublehead con- 
firmed the treaty with the president, at 
Philadelphia, and receives as much as 
$5,000 a year, to be paid to the nation, 
over and above the first price ; indeed 
it may, with truth, be said that, though 
I made the treaty, I made it by the in- 
structions of the president ; and in fact 
it may, with truth, be said that I was in- 
structed by the president to purchase 
much more land than the Indians would 
agree to sell. This sort of talk will be 
throwing the blame off me, upon the 
late president, and, as he is now out of 
office, it will be of no consequence how 
much the Indians blame him. Among 
other things that may be said for me is 
that I was not at the running of the line, 
and that, if I had been, it would have 
been run more to their satisfaction. In 
short you understand the subject and 
must take care to give out the proper 
talks to keep up my consequence with 
the Creeks and Cherokees. Can't Bog- 
ers continue to get the Creeks to desire 
the president to take Hawkins out of 
the nation ? For, if he stays in the 
Creek nation, and gets the good-will of 
the nation, he can and will do great in- 
jury to our plan. When you have read 
this letter over three times then burn it. 
I shall be at Knoxville in July, or Au- 
gust, when I will send for Watts and 
give him the whiskey I promised him. 
I am, &c, 

WILLIAM BLOUNT. 



884 

investigation was requested by certain representatives of Ken- 
tucky, to which Mr. Marshall assented. But the committee were 
of the opinion that, in a case of that kind, no person' could be held 
to answer for an infamous crime, unless on a presentment, or 
indictment, of a grand jury, and that, in all such prosecutions, the 
accused ought to be tried by an impartial jury of the state and 
district wherein the crime had been committed ; that no suffi- 
cient reason had been shown why the accused had not been 
tried in Kentucky ; that, until he was legally convicted, the prin- 
ciples of the constitution and of the common law concurred in 
presuming that he was innocent ; and that, as the constitution 
did not give to the senate jurisdiction of the case, the consent of 
parties could not give it. 1 

§ 1053. In July, 1862, near the end of the second term of Sen- 
ator James F. Simmons, of Rhode Island, a resolution was sub- 
mitted expelling him from the senate. It was set forth in the 
preamble that it appeared, from a report of the secretary of war, 
that Mr. Simmons had exercised his official influence over certain 
heads of departments to procure, an order, authorizing a certain 
person to manufacture rifles for the army and navy, for a com- 
pensation of $50,000, of which $10,000 in promissory notes had 
already been received. The committee on the judiciary reported 
that the facts were substantially as above set forth, and continued 
as follows : " That congress disapproves of such conduct is mani- 
fest, from the fact that they have promptly passed a law making 
it a penal offence hereafter. This will prevent all such acts in 
future. But to visit a severe and striking penalty upon an act, 
which, at the time of its commission, was not punishable, or for- 
bidden, by any public law, would be retroactive, in its effect, and 
render the step liable to that objection, to which all ex post facto 
laws are subject. The committee would further state, in this con- 
nection, that it was the common practice, until a recent period, 
for members of congress to prosecute claims against the govern- 
ment, for fees and rewards ; and that, for many years, our most 
distinguished public men were in the habit of prosecuting claims, 
under such circumstances, without censure or criticism ; but this 
was made a misdemeanor, by an act of congress, in 1854, and, 
since that period, the practice has been discontinued." Congress 

1 Marshall's case, Taft, 68. 



885 

adjourned within three days after the report was made, without 
action thereon by the senate, and before the next session Mr. 
Simmons resigned. 1 

§ 1054. On the fifth of February, 1873, the senate of the United 
States, by unanimous consent, " Resolved, That a select committee, 
consisting of five senators, be appointed by the presiding officer, 
to whom shall be referred the communication this day received 
from the house of representatives, in relation to matter affecting 
members of the senate, together with the copy of the evidence ac- 
companying the same, and that the said committee have power to 
send for persons and papers, and to employ a clerk." On the 27th 
of February, 1873, Mr. Morrill of Maine, from the select com- 
mittee, submitted the following : " Resolved, That James W. Patter- 
son be, and he is hereby, expelled from his seat as a member of the 
senate." Mr. Patterson's term expired March 4, 1873, before action 
was had on the latter resolution. On the 26th of March, 1873, the 
following preamble and resolution were adopted : " Whereas, at 
the last session of the senate, a resolution was reported from the 
select committee on evidence affecting, certain members of the sen- 
ate, ' that James W. Patterson be, and he is hereby, expelled from 
his seat as a member of the senate ; ' and whereas, it was mani- 
festly impossible to consider this resolution, at that session, with- 
out serious detriment to the public business ; and whereas it is 
very questionable if it be competent for the senate to consider the 
same, after Mr. Patterson has ceased to be a member, of the body : 
therefore, Resolved, That the pamphlet, entitled ' Observations on 
the report of the committee of the Senate of the United States 
respecting the Credit Mobilier of America,' submitted by Mr. Pat- 
terson, be received, filed, and printed, with the report of said 
committee." 2 

§ 1055. The constitution expressly empowers each house of 
congress to punish its own members for disorderly behavior. This 
punishment may, in a proper case, be imprisonment, and may be 
inflicted for refusal to obey a rule of the house made for the pres- 
ervation of order. So also the punishment, which each house is 
authorized to inflict, in order to compel the attendance of absent 
members, may be imprisonment for the violation of an order or 
rule of the house relating to the subject. Each house is, by the 

Simmons' case, Taft, 237. 2 Patterson's case, Taft, 423. 



886 

constitution, made the judge of the elections and qualifications of 
its own members. • In the exercise of this power, it has the right 
to- examine witnesses and inspect papers, subject to the usual 
privileges of witnesses, in such cases. And it may be that a wit- 
ness would be subjecL to the same punishment, for refusing to 
testify, in a contested election case, as in a case pending in a court 
of judicature. The house of representatives has the sole right to 
impeach officers of the government, and the senate to try them. 
Where the question of such impeachment is before either body, 
acting in its appropriate sphere on that subject, there can be no 
doubt of the right to compel the attendance of witnesses, and their 
answer to proper questions, by the means lawfully employed by 
courts, of justice in like cases. But no person can be punished, 
for contumacy, as a witness, before either house, unless his testi- 
mony is required in a matter into which that house has jurisdic- 
tion to inquire. Neither house possesses the general power of 
making inquiry into the private affairs of the citizen. No express 
grant to either house of power to punish for contempts is to be 
found in the constitution. The power of the house of commons 
of England, under the laws and customs of parliament, to punish 
for contempt rests upon principles peculiar to that body, and not 
upon any general rule applicable to all legislative bodies. At the 
time when the bishops, lords, knights, and burgesses met in one 
body, the assembled parliament exercised the highest functions of 
a court of judicature, representing the judicial authority of the 
king, in his court of parliament. While this body enacted laws, 
it also rendered judgments in matters of private right, which, when 
approved by the king, were recognized as valid. After the separa- 
tion of the lords and commons into two distinct bodies, the power 
to punish for contempt was retained by each house, because the 
single collective house of parliament had originally, as a court of 
judicature, exercised that power. The right of the senate, or 
house of representatives, of the United States to punish the citi- 
zen, for contempt of its authority, can derive no support from the 
precedents and practices of the respective houses of the English 
parliament, nor from the adjudged cases, in which the English 
courts have upheld these practices. 1 

§ 1056. It is one of the chief merits of the American system 

1 Kilbourne v. Thompson, 103 U. S. 168. 



887 

that all the powers entrusted to government are divided into three 
great departments, and that the functions appropriate to the legis- 
lative, executive, and judicial departments, respectively, are vested 
in separate bodies of public servants. It is essential to the most 
successful practical working of the system that the lines, which 
separate these departments, be broadly and clearly denned, and 
that each of them be restricted to the exercise of its own appro- 
priate powers. In the main, the constitution of the United States, 
on which are modelled the fundamental laws of the several states, 
has marked out, with great precision, and in bold lines, the allot- 
ment of power to the legislative, executive, and judicial departments 
of the government. The constitutional provision that the judicial 
power of the United States shall be vested in one supreme court, 
and in such inferior courts as the congress may, from time to 
time, establish, is a virtual declaration that no judicial power shall 
be exercised, by congress or either of its branches, except in the 
few cases therein particularly specified. An investigation, which 
is judicial in its character, and relates to matters wherein relief 
can only be had by judicial proceedings, involves the exercise of 
a power which is conferred by the constitution upon the judicial, 
and not upon the legislative, department of the government. The 
power exercised by the house of representatives, under a resolu- 
tion directing an inquiry into the transactions of certain dealers 
in real estate, based on the recital that insolvent debtors of the 
government were interested therein, is a judicial power, not con- 
ferred upon the house by the constitution ; and the house cannot 
lawfully compel a witness to testify, in such a case, or punish a 
refusal to testify by imprisonment for contempt. The order of 
the house, in such case, declaring the witness guilty of contempt 
and commanding his imprisonment by the sergeant-at-arms, affords 
the latter no protection in an action for false imprisonment. 1 

§ 1057. The house of representatives is not the final judge of its 
own power and privileges, in cases in which the rights and liber- 
ties of the citizens are concerned ; but the legality of its action 
may be inquired into by the judicial department of the govern- 
ment. That house, in its action, is subject to the laws, in common 
with all other bodies, officers, and tribunals, within the common- 
wealth. Under our written constitution no branch of the gov- 

'Kilbourne v. Thompson, 103 U. S. 168. 



888 



ernment is supreme ; and it is the province and duty of the judicial 
department to determine, in cases regularly brought before it, 
whether the powers of any branch of the government, even those 
exercised by the legislature in the enactment of laws, have been 
exercised in conformity with the constitution. The house of rep- 
resentatives has the power, under the constitution, to imprison for 
contempt ; but the power is limited to cases expressly provided 
for in the constitution, and to cases where the power is neces- 
sarily implied from those constitutional functions and duties, to 
the performance of which it is essential. The constitutional pro- 
vision that, for any speech or debate, in either house, a member 
shall not be questioned in any other place, exempts senators and 
representatives from liability elsewhere for votes, reports, or other 
acts, in their respective houses, as well as for oral debate. A 
plea, by members of either house, that they took no part in the 
actual arrest of a contumacious witness, and did nothing, in rela- 
tion thereto, beyond the protection of their constitutional privi- 
lege, is, so far as they are concerned, a good defence. 1 



1 Kilbourne v. Thompson, 103 U. S. 
168. The opinion of the supreme court 
in this case, contains the following state- 
ment : 

' ' While the experience of almost a 
century has, in general, shown a wise 
and commendable forbearance, in each 
of these branches, from encroachments 
upon the others, it is not to be denied 
that such attempts have been made, and 
it is believed not always without success. 
The increase in the number of states, in 
'their population and wealth, and in the 
amount of power, if not in its nature, to 
be exercised by the federal government, 
presents a powerful and growing temp- 
tation to those to whom that exercise is 
entrusted, to overstep the boundaries of 
their own department and enter upon 
the domain of one of the others, or to 
assume powers not entrusted to either 
of them. The house of representatives, 
having the exclusive right to originate 
all bills for raising revenue, whether 
by taxation or otherwise ; having with 
the senate the right to declare war, 
and fix the compensation of all offi- 
cers and servants of the government, and 
vote the supplies which must pay that 
compensation ; and being also the most 
numerous body of all those engaged in 
the exercise of the primary powers of 



the government, is, for these reasons, 
least of all liable to encroachments upon 
its appropriate domain. By reason also 
of its popular origin, and the frequency 
with which the short term of office of 
its members requires the renewal of their 
authority at the hands of the people 
— the great source of all power in this 
country — encroachments by that body 
on the domain of co-ordinate branches 
of the government would be received 
with less distrust than a similar exercise 
of unwarranted power by any other de- 
partment of the government. It is all 
the more necessary therefore that the 
exercise of power, by this body, when 
acting separately from and independ- 
ently of all other depositories of power, 
should be watched with vigilance, and 
when called in question before any other 
tribunal, having the right to pass upon 
it, that it should receive the most care- 
ful scrutiny." 

In this case of Kilbourne v. Thompson, 
decided in 1880, the supreme court vir- 
tually overrule the case of Anderson v. 
Dunn, 6 Wheat. 204, decided by the 
same court in 1821. Anderson sued 
Dunn for false imprisonment, and Dunn 
justified under a warrant of the house of 
representatives, directed to him as ser- 



889 



§ 1058. In England the successful party was by statute entitled 
to costs. 1 This rule is generally observed in the United States. A 



geant-at-arms of that body. The war- 
rant recited that Anderson had been 
found, by the house " guilty of a breach 
of the privileges of the house and of a 
high contempt of the dignity and au- 
thority of the same." The warrant 
directed the sergeant-at-arms to bring 
him before the house, and, by its order, 
he was reprimanded by the speaker. 
Neither the warrant nor the plea des- 
cribed or gave any clew to the nature of 
the act which was held by the house to 
be a contempt. Nor can it be clearly 
ascertained from the report of the case 
what it was, though a slight inference 
may be derived from something in one 
of the arguments of counsel that it was 
an attempt to bribe a member. 

But, however that may be, the de- 
fence of the sergeant-at-arms rested 
on the broad ground that the house, 
having found the plaintiff guilty of a 
contempt, and the speaker, under the 
order of the house, having issued a war- 
rant for his arrest, that alone was suffi- 
cient authority for the defendant to take 
him into custody, and the court held the 
plea to be good. 

In the case of Anderson v. Dunn the 
court, which included Chief-Justice Mar- 
shall and Justices Story, Livingston, 
Duvall, and Todd, said : 

"It is certainly true that there is no 
power given by the constitution to either 
house to punish for contempts, except 
when committed by their own members. 
Nor does the judicial or criminal power, 
given to the United States, in any part ex- 
pressly extend to the infliction of punish- 
ment for contempt of either house, or any 
one co-ordinate branch of the govern- 



ment. * It is true that such a power, if it 
exists, must be derived from implication, 
and the genius and spirit of our institu- 
tions are hostile to the exercise of implied 
powers. Had the faculties of man been 
competent to the framing of a system of 
government which would have left noth- 
ing to implication it cannot be doubted 
that the effort would have been made by 
the framers of the constitution. But 
what is the fact ? There is not in the 
whole of that admirable instrument a 
grant of powers which does not draw 
after it others, not expressed but vital 
to their exercise, not substantive and 
independent, indeed, but auxiliary and 
subordinate. 

" The idea is Utopian that government 
can exist without leaving the exercise of 
discretion somewhere. Public security 
against the abuse of such discretion 
must rest on responsibility and stated 
appeals to public approbation. Where 
all power is derived from the people, 
and public functionaries, at short inter- 
vals, deposit it at the feet of the people, 
to be resumed again only at their will, 
individual fears may be alarmed by the 
monsters of imagination, but individual 
liberty can be in little danger. 

" If there is one maxim which necessa- 
rily rides over all others, in the practical 
application of government, it is that the 
public functionaries must be left at lib- 
erty to exercise the powers which the 
people have intrusted to them. The in- 
terests and dignity of those who created 
them require the exertion of the powers 
indispensable to the attainment of the 
ends of their creation. Nor is a casual 
conflict with the rights of particular in- 
dividuals any reason to be urged against 
the exercise of such powers. * That 
' the safety of the people is the supreme 
law ' not only comports with, but is in- 
dispensable to, the exercise of those 
powers in their public functionaries, 
without which that safety cannot be 
guarded. On this principle it is that 



1 9 Ann. c. 20, s. 5. The following is 

the statute : 

"It shall and may be lawful, to and 
for the court of queen's bench, to give 
judgment that the relator, or relators, 
in a quo warranto information named, 
shall recover his or their costs of such 



prosecution, and, if judgment shall be 
given for the defendant, or defendants, 
in such information, he or they, for 
whom such judgment shall be given, 
shall recover his or their costs therein 
expended, against such relator or rela- 
tors." 



890 

private relator, who has obtained a judgment, on an information 
in the nature of a quo warranto, is entitled to the costs of the pros- 



courts of justice are universally acknowl- 
edged to be vested with power to impose 
silence, respect, and decorum, in their 
presence, and submission to their lawful 
mandates, and, as a corollary to this 
proposition, to preserve themselves and 
their officers from the approach and 
insults of pollution. * What is the 
alternative ? The argument obviously 
leads to the total annihilation of the 
power of the house of representatives to 
guard itself from contempts, and leaves 
it exposed to every indignity and inter- 
ruption that rudeness, caprice, or even 
conspiracy, may meditate against it. 
This result is fraught with too much 
absurdity not to bring into doubt the 
soundness of any argument from which 
it is derived. That a deliberative as- 
sembly, clothed with the majesty of the 
people, and charged with the care of all 
that is dear to them, composed of the 
most distinguished citizens selected and 
drawn together from every quarter of a 
great nation, whose deliberations are re- 
quired, by public opinion, to be con- 
ducted under the eye of the public, and 
whose decisions must be clothed with all 
that sanctity which unlimited confidence 
in their wisdom and purity can inspire, 
that such an assembly should not possess 
the power to suppress rudeness, or repel 
insult, is a supposition too wild to be 
suggested. 

" The present question is, what is the 
extent of the punishing power which the 
deliberative assemblies of the union may 
assume and exercise, on the principles of 
self,-preservation ? Analogy and the nat- 
ure of the case furnish the answer, the 
least possible power adequate to the end 
proposed; which is the power of impris- 
onment. * And even to the duration 
of imprisonment a period is imposed by 
the nature of things, since the existence 
of the power that imprisons is indispen- 
sable to its continuance ; and, although 
the legislative power continues perpetual, 
the legislative body ceases to exist on 
the moment of its adjournment or period- 
ical dissolution. It follows that impris- 
onment must terminate with that ad- 
journment. 

"If it be inquired what security there 
is that, with an officer avowing himself 
devoted to their will, the house of repre- 
sentatives will confine its punishing 
power to the limits of imprisonment and 



not push it to the infliction of corporal 
punishment, or even death, and exercise 
it, in cases affecting the liberty of speech 
and of the press, the reply is to be found 
in the consideration that the constitution 
was formed in and for an advanced state 
of society, and rests, at every point, on 
received opinions and fixed ideas. It is 
not a new creation, but a combination of 
existing materials, whose properties and 
attributes are familiarly understood , and 
had been determined by reiterated exper- 
iments. It is not therefore reasoning 
upon things, as they are, to suppose that 
any deliberative assembly constituted 
under it would ever assert any other 
rights and powers than those which had 
been established by long practice, and 
conceded by public opinion. Melancholy 
also would be that state of distrust which 
rests not a hope upon a moral influ- 
ence. * 

' ' In reply to the suggestion that on this 
same foundation of necessity might be 
raised a superstructure of implied powers 
in the executive and every other depart- 
ment and even ministerial officer of the 
government, it would be sufficient to 
observe that neither analogy, nor prece- 
dent, would support the assertion of such 
powers in any other than a legislative 
body." 

In Kilbourne v. Thompson, the court, 
commenting upon the case of Anderson 
v. Dunn, said : 

' ' It may be said that since the order of 
the house and the warrant of the speaker, 
and the plea of the sergeant-at-arms, do 
not disclose the ground on which the 
plaintiff was held guilty of a contempt, 
but state the finding of the house, in 
general terms, as a judgment of guilty, 
and as the court placed its decision on 
the ground that such a judgment was 
conclusive in the action against the offi- 
cer who executed the warrant, it is no 
precedent for a case when the plea estab- 
lishes, as we have shown it does, in this 
case, by its recital of the facts, that the 
house has exceeded its authority. This 
is, in fact, a substantial difference. 

" But the court, in its reasoning, goes 
beyond this, and, though the grounds 
of the decision are not very clearly stated, 
we take them to be : that there is, in some 
cases, a power in each house of congress 



891 

ecution, as well as the costs of an interlocutory motion, in which 
he failed. * When any one of several issues is found for the pros- 
ecutor, and judgment of ouster is thereupon rendered, he is en- 
titled to costs on all the issues. 2 Although a person, whose 
election to the office of town councillor is void, by reason of a 
mistake of the presiding officer, is willing to disclaim, and con- 
sents that the rule be made absolute, the court will not subject the 
relator to the costs of the information. 3 When a rule nisi for an 
information in the nature of a quo warranto is discharged, and the 
nominal relator, who is unable to pay costs, appears to have been 
induced to make the application by another, who is the real pros- 
ecutor, the court will order the costs to be paid by the latter, even 
though employed on the motion as attorney. But, if the facts 
which render him liable appear only by the affidavits submitted 
in opposition to the rule, a distinct motion will be necessary, in 
order to subject him to the payment of costs. 4 The court will not 
stay proceedings until the prosecutor gives security for costs, on 



to punish, for contempt ; that this power 
is analogous to that exercised by courts 
of justice ; and that it is the well-estab- 
lished doctrine that when it appears that 
a prisoner is held, under the order of a 
court of general jurisdiction, for a con- 
tempt of its authority, no other court 
will discharge the priso'ner, or make fur- 
ther inquiry into the cause of his com- 
mitment. 

" That this is the general rule, though 
somewhat modified since that case was 
decided, as regards the relations of one 
court to another, must be conceded. But 
we do not concede that the houses of con- 
gress possess this general power of pun- 
ishing for contempt. The cases in which 
they can do this are very limited, as we 
have already attempted to show. If they 
are proceeding in a manner beyond their 
legitimate cognizance, we are of opinion 
that this can be shown, and we cannot 
give our assent to the principle that, by 
the mere act of asserting a person to be 
guilty of a contempt, they establish their 
right to fine and imprison him, beyond 
the power of any court or other tribunal 
whatever to inquire into the grounds on 
which the order was made. This neces- 
sarily grows out of the nature of an au- 
thority which can only exist in a limited 
class of cases, or under special circum- 
stances ; otherwise the limitation is un- 



availing and the power omnipotent. The 
tendency of modern decisions every- 
where is to the doctrine that the juris- 
diction of a court, or other tribunal, to 
render a judgment, affectiug individual 
rights, is always open to inquiry, when 
the judgment is relied upon in any other 
proceeding. See Williamson v. Berry, 
8 How. 495 ; Thompson v. Whitman, 18 
Wall. 457 ; Knowles v. The Gaslight and 
Coke Co. 19 Wall. 58 ; Pennoyer v. Neff, 
95 U. S. 714." 

See Crosby's case, 3 Wils. 188 ; Bur- 
dett v. Abbott, 14 East, 1: Sheriff of 
Middlesex, 11 A. & E. 278 ; Stockdale v. 
Hansard, 9 id. 1 ; Kielly v. Carson, 4 
Moo. P. C. 63; Beaumont v. Barrett, 
1 id. 59 ; Fenton v. Hampton, 11 id. 
347; Doyle v. Falconer, Law Rep. 1 
P. C. 328; Burnham v. Morrissey, 14 
Gray, 226; Coffin v. Coffin, 4 Mass. 1; 
Story Const. 845-49 ; Rawle Const. 48 ; 
1 Kent Comm. 231-35 ; Bolton v. Martin, 
1 Dall. 317. 

a Regina v. Dudley, 4 Jur. 915. 

2 Rex v. Downes, 1 T. R. 453. 

3 Regina v. Hartley, 3 El. & Bl. 143. 

4 Regina v. Greene, 4 Q. B. 646. 



892 

the ground that the relator is in insolvent circumstances, when it 
appears that he is a corporator and no fraud is suggested. 1 

§ 1059. When the court has discharged the rule for an informa- 
tion in the nature of a quo warranto it will, in its discretion, on a 
subsequent application, order payment of costs by the party who 
was virtually relator. 2 The costs occasioned by a frivolous elec- 
tion petition were recoverable, under the statute of 9 Geo. 4, 
against one of several petitioners. 3 Costs of a trial of a contest 
before a legislative body, in the United States, cannot be recovered 
by suit. 4 In Tennessee, if the contestant unite a charge that the 
contestee was ineligible with a claim that he himself was legally 
elected, and establish the first point, and fail to establish the 
second, he may recover the costs of the first branch of the con- 
test, but must pay the costs of the other. 5 When the petitioners 
improperly make an unsuccessful candidate a respondent, they 
cannot object that he is not a party to the petition, and thereby 
deprive the barrister of jurisdiction to make an order on them for 
his costs. 6 Under a statutory provision that, in contested elec- 
tions, " in which the court or judge shall not decide that the com- 
plaint is without probable cause, the proper district, county, city, 
township, borough, ward, school district, or municipality, shall be 
liable to pay all costs, and the same shall be promptly paid, by 
the proper authorities, upon the order of the judge, or court, try- 
ing the case," 7 in the case of a contested election of a member of 
the house of representatives, from a legislative district comprising 
only certain wards of a city, the court, having found that the con- 
test is not without reasonable cause, may impose the costs upon 
the county in which the legislative district is situated. 8 A con- 
tested election case will not be adjudicated, in Texas, after the 
expiration of the term of office, merely for the purpose of fixing 
the liability for costs. 9 Under a statute making removal from 
office the only penalty, for the offence of drunkenness of the 
officer, a judgment cannot be rendered, even for costs, after the 
expiration of the official term. 1 ° 

1 Kex 9. Wynne, 2 M &. S. 346. 6 Lowering v. Dawson, 32 L. T. N. S. 

2 Regina v. Green, 7 Jur. 440. 823. 

3 Gurney c. Gordon, 2 Cromp. & Jerv. 7 Stat. Penn. 1874, 211, 9. 

614. 8 O'Neil's contested election, 98 Penn. 

4 Garrard v. Gallagher, 11 Nev. 382. St. 461. 

5 Lewis v. Watkins, 3 B. J. Lea, 174. 9 Lacoste v. Duffy, 49 Tex. 767. 



10 



Stubbs v. State, 53 Miss. 437. 



893 

§ 1060. An unqualified person was elected town councillor of a 
borough, without taking any part in the election ; but when in- 
formed by the clerk that a refusal of the office would be punishable 
by fine, he signed the usual declaration. Upon an application 
for an information in the nature of a quo warranto, he sent to the 
town clerk a written resignation, which was accepted. It was held 
that the relator was not entitled to the costs of the application. 1 
When a person who had been elected to the office of councillor 
of a borough, for which he was a candidate, and had acted in such 
office, and afterwards, upon the granting of a rule nisi for an infor- 
mation in the nature of a quo warranto against him, had declined 
to show cause, and offered to resign, or disclaim, the court made 
the rule absolute, without imposing upon the relator any terms as 
to costs of subsequent proceedings. 2 When one of two rival can- 
didates for the office of town councillor of a borough obtains the 
seat, but subsequently, upon a rule nisi for an information in the 
nature of a quo warranto, declines to show cause and expresses a 
willingness to resign, he is nevertheless liable for the costs of the 
information. 3 The returning officer, in an incorporated borough 
sending members to parliament, is not liable to costs, under 9 
Anne, c. 10, upon judgment against him on an information in the 
nature of a quo warranto. 4 

§ 1061. The salary and fees are incident to the title, and not to 
the possession, of an office. An officer de facto may be protected 
in the performance of acts done, in good faith, in the discharge of 
the duties of an office under color of right, and third persons will 
not be permitted to question the validity of his acts, by impeach- 
ing his title to the office. Public interests require that acts of 
public officers, who are such de facto, should be respected and 
held valid, as to third persons, who have an interest in them, and 
as to the public, in order to prevent a failure of justice. But it 
does not follow that a right can be asserted and enforced, on behalf 
of one who acts merely under the color of office, without legal 
authority, as if he'were an officer de jure. When an individual 
claims, by action, the office, or the incidents to the office, he can 
only recover upon proof of title. He who has the legal title to the 

1 Regina v. May, 20 L. J. Q. B. 268. 3 Regina v. Sidney, 20 L. J. Q. B. 269. 

2 Regina «>.«Earnshaw, 22 id. 174. 4 Rex v. McKay, 5 B. & C. 640. 



894 

office, but is not in possession of the same, is entitled to the salary 
for the term for which he is elected ; and the payment of the 
salary, to one in possession of the office without title, will not 
prevent the party having the title from recovering the salary. 1 
But it has been held, in New York, that payment to a de facto 
officer, while he is holding the office and discharging its duties, is 
a defence to an action brought by the de jure officer to recover 
the same salary. 3 When the plaintiff had held the office of clerk 
of the peace, by appointment of the keeper of the rolls, for a 
period of four years, and was dispossessed by the defendant, an 
appointee of the crown, by mandamus, but, after a decision by the 
house of lords establishing the right of the keeper of the rolls to 
make the appointment, the plaintiff in turn ousted the defendant, 
by mandamus, and then brought suit to recover the fees and 
emoluments received by the defendant, while clerk de facto, it was 
held that the action was maintainable, as the mandamus did not 
decide the title, but merely enabled the defendant to try the right, 
which had been settled by the decision of the house of lords. 3 

§ 1062. The legal right to an office includes the right to receive and 
appropriate the fees and emoluments legally incident to the office. 
And if a person, without legal right, assume to perform the duties 
of an office and receive the fees and emoluments thereof, he will 
be liable, in an action for money had and received, to him who 
holds the legal title, for the amount so received, less the reason- 
able expenses of earning the same, where the person receiving 
the fees acted, under an apparent right, and in good faith. Nor 
will the recovery, in such case, by the party holding the legal title 
to the office, be limited to such fees as shall have been received, 
after his right is judicially determined, but the right of recovery 
will embrace all the fees received from the time his title accrued. 4 
In 1679 the court of king's bench held that indebitatus assumpsit 
lay, at the suit of one entitled to an office, against a usurper, who 

1 People v. Smyth, 28 Cal. 21 ; Stratton Dolan v. Mayor, 68 N. Y. 278 ; McVeany 
v. Oulton, 28 id. 44; Carroll «. Sieben- v. Mayor, 80 id. 185. 

thaler, 37 id. 193 ; People v. Tieman, 8 3 Crosbie v. Hurley, 1. Al. & N. 431. 

Abb. Pr. 359 ; Christian v. Gibbs, 53 4 Mayfield v. Moore, 53 111. 428. See 

Miss. 314 ; People v. Potter, 63 Cal. 127 ; Hunter v. Chandler, 45 Mo. 453 : Mott 

Dillon v. Myers, Brightley, 426 ; People v. Connolly, 50 Barb. 516 ; Petit v. Kous- 

i). Brennan, 30 How. Pr. 417. seau, 15 La. An. 339. 

2 Terhune v. Mayor, 88 N. Y. 247 ; • 



895 

had received the fees. Scroggs, C. J., inclined against it, but the 
other three judges held the action to be proper. 1 W. was inducted 
into the office of sheriff; C. contested his right to the office. The 
contest was decided in favor of C. But W. had assigned a part 
of his uncollected fees, to the clerks of the several courts, in dis- 
charge of indebtedness to them. Upon bill filed by C, it was held 
that the fees in specie belonged to C, and that he was entitled to 
recover the fees, earned by W. and not collected, as against the 
assignees of W. 2 Under a statutory provision that, in. case of an 
appointment, by county commissioners, to fill a vacancy in an 
office, " such appointment shall expire, when a successor is elected 
and qualified," 3 it was held that the person elected, as such suc- 
cessor, was entitled to take the office as soon as he should qualify ; 
and that, upon the refusal of such appointee to surrender the office, 
upon the demand of his duly elected and qualified successor, the 
latter was entitled to recover, from the former, the gross emolu- 
ments of the office, received while he withheld it, without deduct- 
ing the amount expended for necessary clerk hire, during that 
period. 4 A person who holds a valid title to an office, but is not 
in possession, is not bound by a judgment, in mandamus, to which 
he is not a party, requiring a board of audit to audit and allow 
the salary of another, who is in possession of the office, without 
title. 5 

§ 1063. He who accepts a public office, which requires him to ren- 
der service to the state, must take the office cmn onere. The per- 
formance of the service is gratuitous, unless compensation is 
provided by statute, and a liability for its payment imposed upon 
the state. 6 Services required of officers, by law, for which they are 
not specifically paid, must be considered as compensated by the 
fees allowed for other services. 7 At common law, clerks of courts 
look to the parties for their fees, except in the case of the state, 
which they nominally serve without fee. But, in reality, they re- 
ceive compensation in that case, because the state fixes the rate 
of fees, charged to private parties, so high that their aggregate re- 
ceipts compensate them for their services in state cases, in which 

1 Howard v. Wood, Free, 477. See 8 Peoples. Smyth, 28 Cal. 21. 

Arris v. Stukely, 2 Mod. 260. 6 Pollard v. Brewer, 59 Ala. 130 ; Has- 

2 Currey v. Wright, 9 B. J. Lea, 247. well v. Mayor, 81 N. Y. 255 ; Commis- 
3 1 Be v. Stat. Ind. G. & H. 671. sioners v. Templer, 34 Ind. 322. 

4 Douglass v. State, 31 Ind. 429. 7 Crocker v. Supervisors, 35 Wis. 284. 



896 

defendants are acquitted ; and this is what is meant when it is said 
that officers take their offices cum onere. A constitutional pro- 
vision that " no man's particular service shall be demanded, with- 
out just compensation," 1 does not apply to such cases. 2 Under a 
statute providing that " the board of county commissioners shall 
annually allow the clerk and sheriff, of their respective counties, 
an annual compensation for extra services as such, not exceeding 
one hundred dollars each, which allowance shall be in full of all 
compensation for extra and other services, where no certain fee is 
fixed bylaw," 3 the term extra services embraces all services ren- 
dered by the officers therein named, for which no compensation 
is given by law, and only one hundred dollars can be legally al- 
lowed for all extra services. 4 

§ 1064. During the pendency of a contested election, and until 
its determination by a final decree on the merits, the fees of the 
office belong to the incumbent. 5 The salary is but an incident to 
the office, and cannot be recovered, in case of a disputed title, 
until the title to the office is determined, by a tribunal having 
jurisdiction of the contest. The courts have no jurisdiction to 
render judgment for the salary, in advance of a determination of 
the title, under a constitution vesting exclusive jurisdiction of the 
question of title in the general assembly. 6 In California an officer 
inducted into office, with a commission showing him to be entitled 
to it from a certain date, draws the salary annexed to the office 
from that date."* When the statute, providing for the compensa- 
tion of an officer, makes no provision for a deduction, for absence, 
or neglect of duty, he is entitled to the salary, for the time he 
legally remains in office, without reference to any neglect in the 
discharge of its duties. 8 When the legislature appropriates a 
specific sum for certain service to be rendered by a public officer, 
and the service is rendered by two successive incumbents of the 
office, the latter cannot maintain an action against the former, to 
recover moneys alleged to have been paid to him in excess of his 
proportion of the compensation fixed by law for the service. The 
latter can only look to the state for compensation ; and the 

1 Const. Ind. 1851, art. 1, s. 21. 5 County of Luzerne v. Trimmer, 

2 Commissioners #. Blake, 21 Ind. 32. 95 Penn. St. 97. 

3 2 Kev. Stat. Ind. G-. & H. 652. 6 Baxter v. Brooks, 29 Ark. 173. 

4 Commissioners v. Blake, 21 Ind. 32. 7 Turner v. Melony, 13 Cal. 621. 

8 Bryan v. Cattell, 15 Iowa, 538. 



897 

former is liable only to the state for excessive payments made to 
him. 1 

§ 1065. Under a constitution, which declares that " every per- 
son, elected, or appointed, to any office of trust, or profit, under 
this constitution, or under the laws made pursuant thereto, before 
he shall enter upon the duties of such office, shall take and sub- 
scribe " 2 the oath of office, a person, who successfully contests the 
election of a commissioned incumbent, is entitled to compensation 
only from the date of his own qualification. The issuing of the 
commission and the taking of the prescribed oath are conditions 
precedent to the complete investiture of the office, and no person 
can lawfully assume the responsibilities, or exercise the functions, 
or draw the salary, of the office, before they are complied with. 3 
When the official term of an officer is shortened, by constitutional 
amendment, his salary ceases with his term, and he is to be paid, 
pro rata, until its expiration. 4 A person elected to a state, or 
county, office, to which he is ineligible, under the state constitu- 
tion, cannot maintain an action for fees, as a de facto officer, against 
the state or countv. 5 

§ 1066. An outgoing officer is bound to know who his legal 
successor is, and to surrender the office to him, upon his qualifi- 
cation and demand ; and, if he shall refuse to surrender it, he will 
be, thereafter, a usurper, without claim for compensation for 
services rendered. 6 A suspended deputy postmaster, who is rein- 
stated in office, in consequence of the rejection of his successor 
bv the senate, cannot recover, from the United States, the salary 
of the office, for the period of his suspension, during which its 
duties were performed by another person designated for that pur- 
pose. 7 When an officer recovers a judgment for salary, for a 
certain period, and afterwards brings a suit for salary for a subse- 
quent period, on the trial of the second cause, the defendant may 
show that the plaintiff was legally discharged from service, before 
the commencement of the term, for which he claimed salary and 
recovered in the first suit. The first judgment is conclusive upon 
the facts only so far as that case is concerned ; it does not prevent 

1 Trumbull v. Campbell, 8 111. 502. 5 Matthews fl. Supervisors, 53 Miss. 715. 

2 Const. Md. 1864, art. 1, s. 4. 6 People v. Smyth, 28 Cal. 21. 

3 Jump v. Spence, 28 Md. 1. . 7 Embry v. United States, 100 U. S. 

4 State v. Frizzell, 31 Minn. 460. 680. 

57 



898 

the same facts being controverted in a second case, founded upon 
a distinct cause of action. * 

§ 1067. An agreement by a sheriff, with another person, to give 
him all the fees of his office, with certain specified exceptions, for 
the sum of three hundred pounds per annum, payable quarterly, 
in advance, not out of the fees, but absolutely, and without refer- 
ence to their amount, is prohibited by the law of England; 2 and 
the consequence is forfeiture of the office on conviction, under a 
proceeding by scire facias. 3 

§ 1068. It is competent for the legislature, in the absence of 
express prohibition by the constitution, to reduce the compensa- 
tion of public officers during their official terms, where such com- 
pensation is fixed by statute, and not by the constitution. 4 The 
acceptance of a salaried public office does not establish a con- 
tract, between the officer and the municipality, whereby the latter 
is bound to continue to pay the salary paid at the time of the 
appointment ; 5 but the legislature, unless restrained by constitu- 
tional provisions, has power to change the salaries of public 
officers, at any time, even during their official terms, and it can 
delegate this power to municipal councils. The act of a board of 
supervisors, in fixing the salary of a prosecuting attorney, does 
not constitute a contract between the latter and the county ; and, 
when the constitution does not prevent, the legislature can author- 
ize the board to change the salary, so far as it has not already 
been earned, even though a part of the official duties are duties 
to the state. 6 But when the compensation of an employe of the 
state is fixed, by law, it cannot be reduced,- by the state officer, 
under whom he is employed. The acceptance of the reduced 
compensation, for a time, by the employe, does not estop him 
from claiming the residue. 7 

§ 1069. Under a statutory provision that "the prosecuting 
attorneys shall severally receive such compensation, for their ser- 
vices, by an annual salary, or otherwise, as the board of supervi- 
sors of the proper county shall, from time to time, direct," ? and a 

1 Bernard v. Hoboken, 3 Dutch. 412. State*). Kalb, 50 Wis. 178; Cooley Const. 

2 5 & 6 Edw. 6, c. 16: 49 Geo. 3, c. Lim. 4 ed. p. 36, note, and cases cited; 
126. Humphrey v. Sadler, 40 Ark. 100. 

3 Regina v. Moodie, 20 U. C. Q. B. 389. 6 Knappen V. Supervisors, 46 Mich. 22. 

4 Haynes e. State, 3 Humph. 480. 7 Kehn v. State, 93 N. Y. 291. 

5 Wyandotte v. Drennan, 46 Mich. 478 ; 8 Comp. L. Mich. s. 535. 
Butler v. Pennsylvania, 10 How. 402; 



899 

subsequent provision " that the annual salaries of all salaried 
county officers, which are now, or may be hereafter, by law, fixed 
by the board of supervisors, shall be fixed by said board on, or 
before, the 31st day of October, prior to the commencement of the 
term of such officers, and the same shall not be increased, or 
diminished, during the term for which such officers shall have been 
elected, or appointed," 1 it was held that where the salary had been 
fixed, before the enactment of the latter statute, the commissioners 
were not prohibited from changing it for the second year of the 
officer's term. 2 A constitutional provision, in the following words : 
" Nor shall the salary, or compensation, of any public officer, be 
increased, or diminished, during his term of office," 3 applies only 
to such salaries, or compensation, of public officers, as shall have 
been definitely fixed, by the constitution, or by statute. 4 A con- 
stitutional prohibition against the enactment of private, or local, 
laws, " creating, | increasing, or decreasing fees, percentage, or 
allowances of public officers, during the term for which said offi- 
cers are elected, or appointed," 5 does not apply to officers receiv- 
ing fixed salaries. 6 Where the salary of an officer of a public body 
is the subject of an annual vote, the body has the right to regulate 
the salary, by increase, or reduction, at its pleasure.'* A statu- 
tory provision that " the compensation, or salary, of any officer, 
shall be fixed, before his appointment," 8 does not require the 
salary to be fixed, before every new appointment. 9 

§ 1070. Before the passage of the prohibitory act of March 3, 
1873, 10 allowances to contestants by the house of representatives 
were paid out of the contingent fund of the house. Contestants 
in the senate are still paid out of the contingent fund of the senate. 
By the act of March 3, 1873, it is provided, "That after the expira- 
tion of the forty-second congress, no payment shall be made, by 
the house of representatives, out of its contingent fund, or other- 
wise, to either party to a contested election case, for expenses 
incurred in prosecuting or defending the same." Since the passage 
of this act the payments have been made in pursuance of specific 
appropriations by congress. 

1 Stat. Mich. 1879, c. 154. 7 Koyal Burghs v. Cunningham, 1 Bell, 

2 Knappen v. Supervisors, 46 Mich. 22. 628. 

3 Const. W. Va. 1863, art. 3, s. 9. 8 Stat. N. Y. 1880, c. 30, s. 10. 

4 Eucker v. Supervisors, 7 W. Va. 661. 9 People v. Crissey, 91 N. Y. 616. 



Const. N. Y., art. 3, s. 18. in 17 Stat. 490. 

Mangam v. Brooklyn, 98 N. Y. 585. 



INDEX. 



Secs. 

Abandonment of office 240 

Absence from polls, officers of elec- 
tion 509 

Absence from state, disqualification 

for office 189 

Abstracts. 

California 578 

Precinct canvassers 578 

Precinct returns 633 

Separate sheets 584 

Active partisanship. 

Officers of election 507 

Prohibition, unconstitutional 507 

Adjournment. 

Election 322, 415 

Pending election 463^165 

Statutory contest 799 

Town meeting 415 

Adjudication. Time limited 801 

Affidavit. 

Jurisdiction 819 

Loss 597 

Notice of contest 820, 821 

Quo warranto 884 

Age. 

Qualification for office 153 

Qualification of voters 75 

Aldermen, power to choose, London 684 

Aliens. 

Foreign birth not decisive of 

alienage 25 

Naturalized within ten days of 
election may vote in Pennsyl- 
vania 23 
Qualified electors 22 
Eatable polls 120 

Allegations of notice of contest. 

" Duly convened " 829 

Former election 833 

Fraud 829 

Irrelevant 833 

Loyal votes 829 

Ohio 832 

Qualifications of contestant 829 

Alteration of congressional district 

during term 332 

Amendment. 

Answer 839 

Notice of contest 840, 1007 

Petition 840 

Pleadings 839, 840 

Keturns 590, 591 

Statutory contests 838 

Amotion 241 



Secs. 

Ancient usage, statutory confirma- 
tion 500 

Annexed territory, citizenship 27 

Annual elections 284 

Annual town meeting 306 

Answer. 

Amendment 839 

Default 841 

Form and substance 1013 

Proof to correspond with aver- 
ments 1001 
Statutory contests 841 

Appeal. 

Collateral adjudication 849 

Intendment 849 

Irregularity 851 

Judgment of appellate court 849 
Mandatory provisions 848 

Officers entitled, pendente lite 852 
Presumption 850 

Presumption as to effect of ille- 
gal votes 510 
Quo warranto 910 
Record 849 
Registration 351 
Statutory contests 845, 847 
Time 848 
Trial de novo 850 

Appearance of representative ; re- 
fusal 232 

Appointing officers. 

Quorum 695 

Residence 695 

Appointment. 

By crown, England 694 

By governor, state office 320 

Commission distinct from 701 

Conditional 700 

Consummation 693, 701 

Form and substance of proceed- 
ings 688 
Life, Scotland 696 
Not a contract 716 
Of one of the appointing offi- 
cers ; validity 691 
Quorum 691 
Reconsideration 693 
Special constitutional provisions 

702-707 
"When to be in writing 688 

Appointments or elections ; corrupt 

agreements 698 

Apportionment. 

Confederate 333 



901 



902 



Secs. 

Apportionment — Continued. 

New election 335 

Operation of law 335 

Subsequent election 335 

Apportionment of illegal votes 513 

Appropriation of gross sum to sev- 
eral objects, without appor- 
tionment, illegal 276 

Arrest. Privilege of electors 637 

Arsenals. 

Kesidence of voters 62 

Eight of inhabitants to vote 18, 21 

Assessment lists. 

Disposition 597 

Number of voters 402 

Articles in warrant. 

Acceptance of town way 411 

Aid to injured employe 411 

Annexation to municipality 416 
Choice of officers 411 

Choice of representatives 405 

Collection of tax on land 420 

Guaranty of railway bonds 419 

Municipal aid 411 

Order of consideration 410 

Re consideration 409 

Eepresentatives 410 

Road commissioners 411 

School district 412, 416, 418, 420 
School house 419 

Shell fishery 416 

Soldiers' bounties 413, 414 

416, 419 
Time for opening polls 409, 420 
Vote to " pass over " 420 

Asjdums for soldiers. Right of 

residents to vote 63 

Attorney-general. Information 878 

Ballot-boxes. 

Burden of proof 597 

Construction 444 

Custody 503, 505, 506, 511 

Disposition 597, 636 

Mistake in deposit of ballots 447 
Not locked, but tied with tape 906 
Not sealed 511 

Overturned 506 

Position, custody, exposure, re- 
moval 445, 505 
Sealed up 597 
Several boxes 446 

Ballot-boxes and documents, dispo- 
sition 636 

Ballot papers. 

Blind voters 430 

Delivery to voter 430 

England 455 

Form 430 

Marks 430 

Mode of deposit in England 457 
Tendered 430 

Ballots and poll-books. Loss 403 



Secs. 
Ballots. 

Abbreviations 542, 543 

Ambiguous 539, 550, 551 

Candidates excessive in number 

552-554 
Candidate's name inscribed by 

voter in England 528 

"Circuit clerk" for " clerk of 

the circuit court" 548 

Colored 454 

Contradiction 539, 552. 772 

Custody 585 

Deceptive 564 

Defective in heading or other- 
wise 546-548 
Designation of candidates, de- 
fective 547 
Designation of office erroneous 548 
Designations of terms of office 

omitted 565 

Directory requirements as to in- 
dorsements 528 
Disposition 597, 595, 636 
Elections of town officers 454 
Enclosed in declarations of in- 
ability to read 536 
England ; omission of descrip- 
tion of voter 540 
England ; residence not des- 
cribed 546 
England ; voter's mark inaccu- 
rately located 548 
Erasure by town clerk from 

transcript 540 

Evidence 758, 759, 766-768 

Exceeding voters in number 599 
Excessive number of candidates 552 
Excluded by precinct canvass- 
ers 568 
Explanation 539, 772 
Extrinsic explanatory facts 550 
False and fraudulent, crime 496 
Fatal ambiguity 551 
Folded together 536, 537 
Folded together, different offi- 
ces 537 
Folded together, unlawfully ex- 
cluded 537 
"For bonds" equivalent to 

" For the bonds " 528 

Formal requisites 454-456 

Form, substance, and requisites 528 
"For representative in con- 
gress. Fourth district " 
counted for representative of 
third district 547 

" For representative, sixth dis- 
trict," instead of "For repre- 
sentative in congress, sixth 
district " 548 

"Geo." for "George," "Hen." 
for "Henry," "Benj." for 



903 



Ballots — Continued. 

" Benjamin," 

" James " 
Idem sonantia 
Ineligible candidates 



Secs. 

Jas." for 

542 
549 
556-560 
Initials only of christian names 

538-540 
Inspection 636 

Intention of voter 552, 772 

Interlineations, erasures, pas- 
ters 562 
"Jno." for "John" 542 
" Jos. " for " Joseph " 543 
" Joseph" instead of " Henry" 541 
" Junior " omitted 544 
" Lansing" for " The point be- 
tween Lansing and Capoli " 547 
Loss 597 
Lost ; other proof 759 
Marked 529-534 
Marked by officer 504 
Middle names omitted or erro- 
neous 545 
Mode of depositing 457 
More cast than counted 506 
Names erroneously registered, 

but printed as registered 566 

Names excessive in number 554 
Names not spelled like those of 

candidates, but idem sonantia 549 
Names too close together, Mis- 
sissippi 546 
Not received directly from hand 

of voter 457,462 

Number of candidates 454 

Numbered 535 

Numbered by officer 504 

Officers for several districts 456 
Offices not designated 546 

Phraseology for removal of 

countv seat . 528 

Placed by officer in his own 

pocket 504 

Recounts 776-791 

Rejected 597 

Repetition of name of candidate 537 
Repetition of names and offices 553 
Requisite number of names 

wanting 528 

Residents of different counties 

not named as candidates 555 

Secrecy 457 

Separate nominations, England 537 
Several deposited by one voter 

for one candidate 536 

Several folded together 536 

Several names for one office 552 
Several pieces of paper 563 

Single 454 

Split 528 

Surname only 541 

Surrounding circumstances 539 



Secs. 
Ballots — Continued. 

"Thomas" instead of "Joseph " 541 
Town meeting 308 

"Trustees of public schools" 
for "Trustees of common 
schools" 548 

Two names for one office, Dela- 
ware 555 
Value as evidence of result 786, 787 
Void statutory limitations as to 

offices 552 

Vote by, advantages and disad- 
vantages 9 
Voters name inscribed in Eng- 
land ' 528 
Whole number, how ascertained 571 
Without affix " Junior " 544 
Without christian names or with 

erroneous christian names 541 

" Wm." for " William " 542 

Wrong ballot-box 561 

Wrong envelopes 567 

Bankruptcy. Disqualification for 

office 182 

Best evidence 759 

Bill of particulars. Statutory con- 
tests 843 
Bond, official 221-223 
Failure of approving officer to 

act 233 

Failure to make 233 

Boneham 236 

Books and papers, delivery of. Sum- 
mary remedy 853 
Boundaries of election districts 338, 339 
Bribery. 

Agreement as to salary 482 

Averments 491 

Candidate for house of com- 
mons 481 
Choice of senator 654 
Compensation for aid in secur- 
ing nomination 485 
Compensation for erection of 

log-cabin 485 

Compensation for withdrawal 

of candidacy 485 

Completion of offence 492 

Disqualification for office 174 

Disqualifications of voters 103 

Election proceedings 479-492 

Employment of voter 482, 483 

Entertainment 485 

Evidence 491 

Failure to vote "according to 

the bribe " 490 

Infamous crime 492 

Intention of voter 490 

Knowledge and consent of can- 
didate 487, 488 
Meaning of terms to give, offer, 
promise, and procure 492 



904: 



Secs. 
Bribery — Continued. 

Misdemeanor in Maine 492 

Offer of public buildings, as in- 
ducement to remove county 
seat 486 

Offer to perform duties of office 

for reduced compensation 486 
Payment after election 489, 491 

Prior election 490, 491 

[Refreshments 483, 488, 489 

Regularity of election 492 

Release of debt 485 

Remuneration for loss of time 483 
Representatives in congress 492 
Right of corrupted party to 

vote immaterial 490 

Suspension pending investiga- 
tion 488 
Travelling expenses 483, 484, 489 
Treating 483, 488 
Bridges. 

Popular vote 258 

Question submitted to electors 246 

Vote of electors 253 

British parliament. "Writ of election 728 

Burgesses. Quorum 683 

Burgess list 365 

Effect 358 

England 354 

Burgess or freeman. Rights under 

English statute 24 

Burgh list. Scotland 352 

By-standers. Choice of officers of 

election 426 

Premature election 505 

Canvass 275, 306 

County returns excluded ; Wis- 
consin 615 
Delay 613 
Of votes not deposited in bal- 
lot-box 516, 517 
Papers excluded 614 
Power of congress and of state 

legislatures 731 

Prima facie validity 622 

Revisory power of state board 622 
Canvassers 601-636 

Appointment, qualifications, 
substitutions, disqualifica- 
tions 601 
Candidates 602 
Common council 602 
Duties ministerial 606, 607, 611, 615 
Fraud, misconduct, mistake 635 
Going behind returns 604 
Grounds of action 626 
Irregularities 630 
Jurisdiction and powers 603, 609 
Majority unofficial persons 602 
Manner of canvass 614-624 
Mayor and council, Alabama ; 
duties ministerial 610 



Secs. 

Canvassers — Continued. 

Organization of board 601 , 602 

Powers and duties 603-611 

Precinct return conclusive 603, 615 
Qualifications 262 

Quorum 601,602 

Secretary of state, Louisiana; 

duties ministerial 611 

Sheriffs, coroners 602 

Unauthorized 577 

Usurpation of functions 577 

Canvassers, county. 

Duties ministerial 605, 608, 611 

Judicial powers in Mississippi 

and Alabama 612 

Jurisdiction and powers 604, 609 
Ministerial officers 604 

Casting vote 576, 624 

Casual affray. Validity of election 467 

Casual vacancy. Executive appoint- 
ment 704 

Census reports. Evidence 1034 

Certificates. 

Accompanying statements 626, 629 
By-standers 426 

County seat, removal 627 

Court will "go behind " them 771 
Delay in filing 580 

Duration of election 754 

Effect 626,631,811 

Evidence of void election 580 

Facts 753 

Forgery, bribery 626 

Governors 732 

Marginal entry in record 754 

Non-appearance of name on 

record 754 

Non-existence of record 154 

Of fact by king of England 754 

Power of legislature 793 

Property qualification 755 

Ratable polls 755 

Recitals 194 

Recount of ballots 760 

Return 627 

Signature irregular 630 

Substance of record 754 

Transactions at town meeting 754 
Two towns in one district 630 

Validity 731 

Certified copies. 

Age of voter 751 

Election papers 751 

Evidence 750 

In obedience to mandamus 751 

Pauper 751 

Poll book 757 

Register of voters 751 

Result of election 759 

Returns legal in form 751 

Unauthorized officer 752 

Unauthorized record 752 



905 





Secs. 


Certiorari 


947, 948 


Cession of 1790 


111, 121 


Challenge of voters 


458-460 


Omission, effect of 


360, 361 


Change of viva voce vote 


462 


Check list 


372 


Massachusetts 


452 


Not used 


381 



Children of citizens born abroad 26, 27 
Chiltern Hundreds 236 

Citizenship. 

A citizen of the United States 
must be a citizen of the state 
of his domicile 25 

Annexed territory 27 

Children of citizens born 

abroad 26, 27 

Fourteenth amendment 25 

Not a qualification of voters in 

all the states 22, 23 

Not a qualification of voters 
uuder a constitution confer- 
ring right of suffrage upon' 
inhabitants, freeholders, or 
householders 23 

Not lost by residence in foreign 
country, or adhesion to for- 
eign government 26 
Officers of election 371 
Qualification for office 138 
Qualification for offices of presi- 
dent, vice-president, senator, 
representative, delegate 139, 140 
Kesidents of United States pre- 
sumed to be citizens 37 
Treaty of Paris of 1803 27 
City charter. Amendment. Num- 
ber of votes required .259 
Civil action. Substitute for quo 
warranto and information in 
the nature of quo warranto 836 
Clergyman. Disqualifications for 

office 187 

Clerk. Designated by chancellor 
appointed by governor to fill 
vacancy 690 

Election by outgoing judges 
before qualification of incom- 
ing judges 690 
Clerks of election. Supernumera- 
ries, dismissal 509 
Closing polls 426, 520-524 
Designation of hour generally 

directory 520 

England 420 

Law fixing hour mandatory in 

Oregon 520 

Massachusetts 520 

Soldiers' vote 522 

Virginia 464 

Cockades. Forfeiture 496 

Collateral contest 951, 952, 953 



Secs. 

Collateral contest — Continued. 

Habeas corpus 951 

Suit for salary 953 

Color of office 687 

Color of voters. Determination by 

officers of election 460 

Colorado. Exemption from opera- 
tion of act of March 3, 1875 315 

Commission. 

Defaulter 632 

Delivery 700 

Failure to take out 233 

Power of secretary of state 701 

Kecord 701 

Kevocation 700 

Seal 701 

Secretary of state 700 

Signature 700 

In British army, disqualifica- 
tion for office 185 

Commissioners. 

Elections by 691, 692 

Vote by ballot 691 

Commissioners, district. Mandamus 609 

Committee of elections. 

House of commons of United 

Kingdom 978 

House of representatives of 
United States 976, 977 

Committee on privileges and elec- 
tions, senate of United States 977 

Common council. 

Casting vote of provost 688 

Choice of officers contested 689 

Election by one branch 687 

Election on motion 687 

Quorum 686, 687 

Eight of each member to vote 
for 'whole number of officers 687 

Concurrent remedies. Quo war- 
ranto and statutory proceed- 
ings 862, 868, 869 

Conflict between state constitution 

and statute 316, 324, 326, 367, 374 

Congressional district 331 

Change during term 332 

Confederate apportionment 333 
Indian reservations 334 

Unorganized county 333, 334 

Conspiracy. 

Elections 496 

Usurpation of offices of election 500 

Constitution. 

Amendment, number of votes 

required 259 

Amendment, popular vote 253, 258 
Fifteenth amendment 11, 12, 79 
Fourteenth amendment 11, 78 

Ratification 316 

Thirteenth amendment 77 

Time of election of state offi- 
cers 320 



906 



Secs. 
Constitution of state. 

Annual general election 315 

Time for choosing represent- 
atives in congress 293 
Constitutional convention 294, 295 
Is it a legislature ? 292 
Power to fix time of election 

290-296 
Constitutionality. Act withholding 

suffrage 792 

Registration 340-343 

Construction. 

Of constitutions 273 

Of state laws 1037 

Construction and interpretation. 

Laws regulating elections 792 
Contempt. 

Power of lords and commons 1055 
Power of senate and house 

1055, 1056, 1057 
Contest. 

Power of attorney 816 

When maintainable 816 

Contested elections. 

Commencement of proceedings 

817-819 
Delegation of powers 797 

Departments of the government 794 
Limitation of action 816 

Power of legislature 301, 794 

Practice 813 

Summary proceedings 796 

Contract submitted to electors . Pub- 
lication 397 
Coroner. Election by council 685 
Corrupt agreements. 496 
Corruption. Withdrawal of charges 979 
Costs 1058, 1059, 1060 
Counterfoils. 

Ballot-papers 430 

Inspection 636 

County. 

Boundaries.changed. Number of 

votes required 259 

By-laws. Irregularities in no- 
tice of election 405 
Division. Number of votes re- 
quired 260 
Commissioners. Election by 
quorum 691 
County seat, removal. 

Certificate of clerk 627 

Notice of election 404 

Number of votes required 259, 260 
Petition for election 401, 402 

Popular vote 249, 255, 257, 258, 268 

269, 312 
Publication of petition 404 

Registration 357 

Statutory contests 795 

Void election 404 

Vote required 259 



Secs. 
County treasurer. Appointment by 

county commissioners 693 

Court-house. Popular vote for re- 
moval 258 
Courts. 

Appointments by 690 

Powers in contested election 
cases 801 



Credentials 


625 


British parliament 


428 


Certifying officer 


626 


Defaulter 


632 


Delay 


625 


Double election 


630 


" Duly elected " 


737 


England 


628 



Failure of state law to prescribe 738 
Form and substance 626, 629 

Form in different states 733 

Forms accepted by clerk 738 

Governors' certificates 732, 982 

Members of legislative bodies 

731-738 
Power of congress and of the 

states 732 

Power of house of representa- 
tives, pending contest 733 
Refusal of governor 625 
Refusal or neglect to furnish 634 
' ' Regularly elected " 736 
Representatives in congress 724 
Representatives in congress. 

Numerous forms 732 

Representatives in congress. 

Usual form 982 

Revised statutes, s. 31 734 

Showing regular elections 735, 736 
State laws 738 

Wanting, England 628 

Withheld 634 

Crime. 

Disqualification for office 173 

Disqualifications of voters 96 

Crime and misconduct 496, 497 

Criminal liability. Mandatory re- 
quirements 498 
Cross-notice. Defendant 830 
Dakota. Election on Indian reser- 
vations unlawful 60 
Day and place of election. Regu- 
lations generally mandatory 498 
Death of candidate. England 311 
Death of parties 1043, 1044, 1045, 1046 
Death of representative. New elec- 
tion 1046 
Declaration of result 269 
Consummation of election pro- 
ceedings 625 
Delay 625 
Reversible only by judgment 

of competent court 622 

Supplementary 578 



907 



Declination of office 232, 234, 235-239 

Be facto officers. In general 232, 375, 687 

Be facto officers of election 369-373, 377 

Registration 347 

Soldiers' bounty 393 

Usurper and intruder 380 

Defence. Quo warranto 899-901 

Defendant. 

Counter allegations 828 

Cross-notice 830 

Notice of new matter 828 

Delegates from territories. 

Doubt whether they should be 
admitted to senate or to house 
of representatives 113 

From Minnesota 116 

From New Mexico 115, 117 

From Northwest Territory 114 

Power to exclude from house 112 
Power to prescribe qualifica- 
tions 137 
Rights under ordinance of 1787 112 
Delegation of legislative power 242, 243 

268, 792, 797 
Demurrer. Notice of contest or pe- 
tition 824 
Departments of government. 

Independence 865 

Power to adjudicate contested 
elections 794 

Depositions. 

Application for extension of 

time 1028 

Application for special order 

1024, 1027 
Commencement of contestant's 

time . 1023 

Contest dismissed because tes- 
timony not taken in time 1023 
County clerk 1029 

Extension of time for taking 

1025, 1026, 1028 
General rules of evidence appli- 
cable to contested election 
cases 1021 

Impeachment of party's own 

witness 1021 

Justices of the peace 1029 

Manner of taking 1021 

Notice 1030, 1031 

Officers before whom taken 1029 
Time and place of taking 1023, 1024 
United States commissioners 1029 
Validity of statutory regula- 
tions 1022 
Written in presence of officer 1021 
Desborough 236 
Deserters. 

Challenge at polls 460 

Disqualifications of voters 98 

Officer of election 382 

Determination of result 578 



Secs. 
Determination of result — Continued. 
Absence of statutory provision 622 
Ballots only used 578 

By lot 624 

Certificate, proclamation 579-580 
Correction 578 

Delay unlawful in Massachu- 
setts and Englaud 579 
Expiration of thirty days 623 
Directory requirements 312, 358, 600 
Appointment of officers of elec- 
tion 426 
Hour of holding election 310 
Notice of election 384 
Officers of election 368, 369 
Opening polls 441 
Warrant for town meeting 407 
Disclaimer. Form in quo warranto 

information 994 

Discrepancy. Check list and re- 
turn 501 
Disqualifications for membership of 

house of commons 190 

Disloyalty. Disqualification for of- 
fice 179-181 
Disqualification for office. 

Absence from state 189 

Bankruptcy 182 

Bribery 174 

Clergyman 187 

Commission in British army 185 
Crime in general 173 

Duelling 175, 176 

Government contracts 184 

Failure to take the sacrament 183 
Holding state office 165-170 

Impeachment 188 

Incompatible office 156-158 

Incompatible office under Unit- 
ed States 159-164 
Pensions 187 
Polygamy 177 
Prior tenure of same office 171, 172 
Rebellion, treason, disloyalty 

179-181 
Sale of office 178 

Disqualification for trial of contest. 

Interest of judge 798 

Disqualifications. Officers of elec- 
tion 375 
Disqualifications of voters. Idiots, 
lunatics, criminals, deaf 
mutes, deserters, Indians, in- 
habitants of annexed terri- 
tory, paupers, polygamists, 
duellists, rebels, persons 
guilty of bribery, refusal to 
take test oaths, persons not 
householders 22, 96-105 
Distinguishing marks or words 529-534 
District attorney. Duty to prose- 
cute contests 815 



908 



Secs. 
District of Columbia. 

Legislature . 122 

Right of representation in con- 
gress 118 
Right of suffrage in 15 
Districts, election. 

New organization 336 

Power to establish 331 

Districts, state legislature. Consti- 
tutional limitations 338 
Division of election district. Effect 339 
Documentary evidence. 

Extension of time 1028 

Notice 1032 

Reference to committee 1032 

Time and manner of filing 1032 

Dock-yards. Residence of voters 62 
Domestic animals. Popular vote 

252, 256 
Domicile. 

Acquisition and loss 45 

Change or resumption 44 

Definition 42 

Every man must have one some- 
where 45 
Intention 47 
Of son when that of father 22 
Political domicile must be at 

actual home 45 

Slight circumstances often de- 
cisive 45 
Three kinds, by birth, by 
choice, and by operation of 
law 44 
Drafted men not reporting for duty 98 
Duelling. 

Disqualification for office 175, 176 
Disqualifications of voters 101 

Power of executive officers to 
adjudicate question of guilt 800 
Due process of law. Louisiana 

statute 796 

Duration of election 426 

East Hendred 236 

Election or appointment. Power to 

prescribe mode 129 

Elections. 

By court of record 690 

By mayor, common council, and 

aldermen 682-689 

Double 630 

Executive and judicial officers 

123, 124 
For the determination of ques- 
tions submitted to voters 

242-283 
General, special, regular, an 

nual 284 

Power to provide for election 
of county and township offi- 
cers does not extend to city 
or village officers 129 



Secs. 
Elections — Continued. 

Time, place, and manner pre- 
scribed by law 5 
To be valid must be authorized 

by law 5 

Want of funds to defray ex- 
penses 402 
Election districts. 

Constitutional limitations 337, 338 
Be facto 339 

Defects in boundaries 339 

Defined 56 

Effect of division 339 

Effects of unconstitutional statu- 
tory provisions 339 
Electors of president, vice-presi- 
dent, representatives and del- 
egates in congress 331-336 
Failure to establish 331 
New organization 336 
Power to establish 331 
State officers 337-339 
Electioneering. Officers of election 507 
Electoral colleges. 

Proceedings under amended 

constitution 645 

Proceedings under original con- 
stitution 614 
Electors. Questions submitted. 

Rescission of vote 251 

Eligibility. 

Capacity to hold office, as well 

as to be elected 558 

Presumption 559 

Eminent domain, in states, terri- 
tories, forts, arsenals, navy 
yards 17 

Enabling acts authorizing elections 
of senators and representa- 
tives by new states, prior to 
admission 107 

Equity. 

Information refused 860 

Jurisdiction of contested elec- 
tion cases 949 
Jurisdiction to determine loca- 
tion of county seat 949 
Mandamus 927 
Not appropriate remedy 268 
Remedy for rejection of vote 638 
Statutory contests 638 
Equity jurisdiction, house of repre- 
sentatives 772 
Error. 

Collateral adjudication 849 

Quo warranto 910 

Statutory contests 847 

Estoppel. Municipal aid to schools 276 

Evidence. 

Admissions and declarations of 

voters 773-775 

Allegations 824 



909 



Secs. 
Evidence — Continued. 

Ballots 760, 766-768 

Census reports 1034 

Certified copies 150 

Certified statements 750 

Contents lost returns, poll-books, 

and tally-sheets 679 

Decision of court 1036 

Decision of state senate 1036 

Document produced by clerk of 

crown 751 

Facts and circumstances show- 
ing for whom vote was cast 768 
Hearsay 770 

Minor's vote 761 

Muster-rolls 1035 

Official entries 760 

Opinion 761 

Postmarks of letters 760 

Power of congress 749 

Power of parliament 749 

Power of state legislatures 749 

President's message 1034 

Eeport of committee of state 

legislature 1036 

Report of investigating commit- 
tee of state legislature 1036 
Res inter alios acta 1036 
Statutory contests 845 
Surrounding facts 760 
Testimony before senate com- 
mittee 1036 
Unauthorized tally sheets 761 
Voter unknown 761 
Exclusion of legal votes 514, 515 
Exclusion of poll. Misconduct of 

officers 500 

Executive appointments. 

Annulled, England and United 

States 699 

Concurrence of other authority 704 
Form 705 

Full terms 699-703 

Notice of vacancy 705 

Officer appointing himself 700 

Power of senate ; casual vacan- 
cies 704 
Recess of senate 704 
Special constitutional and stat- 
utory provisions 702, 703 
Executive officers. Constitutional 
power to exercise judicial 
functions 800 
Exemplary damages 638 
Ex parte affidavits 1033 
Expiration of term. Quo warranto 902 
Expulsion. 

House of commons 1049 

House of representatives 1048-1049 
Senate 1050, 1051, 1052, 1053, 1054 
Senate and house. 1049 

Females. Exclusion from right of 

suffrage not unconstitutional 16 



Secs. 
Fence regulations. Petition for elec- 
tion 400 
Forfeiture. Judicial ascertainment 234 
Forfeiture of office 233, 240, 241 
Former election. Contest 800 
Forms. 

Answer to notice of contest 1013 
Disclaimer on quo warranto in- 
formation 894 
Information in the nature of a 

quo warranto 882 

Notice of contest 996 

Plea to quo warranto informa- 
tion 894 
Forts. Residence of voters 62 
Fountains. Question submitted to 

electors 249 

Fourteenth amendment. Citizenship 25 
Fraud. 

Precinct canvass 596 

Precinct return 596 

Fraudulent votes. Returns 496 

Fundi officio 590, 619-621 

General elections 284, 312, 321, 324, 325 
Government contracts. Disqualifi- 
cation for office 184 
Governor. Special election 299 
Habeas corpus. Validity of election 806 
Hempholme 236 
Highways. Question submitted to 

electors 246 

Holding over. 

After resignation 225 

By governor and other state 

"officers 225, 226 

By judges, Mississippi 224 

By justices of the peace 226 

By officers chosen annually, in 

England 224 

For indefinite period 227 

In Scotland 224 

Not sanctioned by the common 

law 224 

Officers 224-231 

On death of successor before 

qualification 225 

Under schedule of constitution 225 
When successor is commissioned 
and sworn, and dies before 
commencement of his term 225 
Hour of opening polls. Directory 

requirements 407 

House of commons. 

Authority of decisions 761 

Clerk : appointment, term of 
office, powers at organization 
of house 728 

Committee of elections 978 

Credentials 728 

Delegation of powers in con- 
tested election cases 969 
Disqualifications for member- 
ship 190 



910 



Secs. 
House of commons — Continued. 

Enrollment of members 728, 729 
Expulsion 1049 

Manner of choosing speaker 672, 673 
Organization 728, 729 

Power to prescribe qualifica- 
tions of members 131 
Resignation or declination of 
seat 236 
House of lords. Speaker or proloc- 
utor 674 
House of representatives. 

Clerk's powers and duties in or- 
ganization 722-727 
Credentials forged or fictitious 723 
Enrollment of members 722-727 
Equity jurisdiction 772 
Jurisdiction conferred by con- 
stitution 972 
Jurisdiction independent of 

pleadings 972 

Jurisdiction independent of 

statute 972, 973, 974 

Occupation of seat pending con- 
test 733 
Organization 722-727 
Powers in contested election 

cases 539 

Power to determine right to 

seats 1047 

Power to elect its own officers 669 
Idiots and lunatics. Disqualifica- 
tions of voters 95 
Illegal votes. 

Admission 510-513 

Advice of counsel 957 

Apportionment 513 

Failure to show who received 

them 513 

Intent 956 

Persons not registered 362 

Eesult changed 510 

Rule in case of failure to show 
for whom they were cast 413 

Impeachment, disqualification for 

office 188 

Impeachment of returns 499 

Incompatible offices 156,240,159-164,405 
Indians. 

Disqualifications of voters 99 

Election 300 

Indiana territory. Time of election 319 
Indian reservations. 

Election unlawful 60 

Right of inhabitants to vote 20, 61 
Indictment. 

Averments 965 

Concurrence of other officers 963 
Duplicity 966 

Error of judgment by officer 963 
Exclusion from polls 964 

False record of vote 963 



Secs. 
Indictment — Continued. 

Female 956 

Illegal registration 954 

Illegal voting 955-961 

Justification, order of superior 

officer 643 

Minor 956 

Officer receiving vote of party 

to wager 964 

Registration cancelled by gov- 
ernor 367 
Unconstitutionality of law 963 
Vote received by one officer in 
opposition to the opinion of 
the other two 963 
Wilful misconduct of officer 963 
Induction to office 221-223 
Ineligibility of candidate receiving 

majority of votes 679 

Constructive notice 558 

Count of votes 560 

Cured after election 556 

England 556 

Indiana 558 

Notice, England 556, 557, 560 

Statutory provision for second 

election, Scotland 557 

United States 559 

Votes given before notice, Eng- 
land 557 
Votes in England nullities 556 
Votes not nullities in United 
States 559 
Ineligibility of commissioned can- 
didate. Commission to mi- 
nority candidate 558 
Informalities 368, 369 
Information in the nature of a quo 

warranto 854 

Abandonment of office 887 

Absence of statutory provisions 

for contest 856 

Affidavits 884, 885, 886 

Alabama 857 

Allegations 888 

Allegations, Indiana 889 

Amendment of judgment 907 

Amendment of pleadings 894, 897 
Answer argumentative 899 

Appearance of respondent 893 

Application, exhibits 887 

Attorney-general 872 

Averment of citizenship 888 

Burden of proof 905 

Burden on respondent to 

show his own title 899 

Charter or prescription 888, 896 
Common law procedure acts of 

England 892 

Concurrent jurisdiction 864 

Consent of attorney-general, 
Minnesota 879 



911 



Secs. 
Information in the nature of a quo 
warra nto — Continued. 
Consolidation 892 

Consolidation, England 879 

Counter affidavits 886 

Courts more circumspect than 

formerly 890 

Court protects all parties 872 

De facto officer 885 

Defendants having power to tax 880 
Defendant mere servant of a 

corporation 880 

Defendants must be natural per- 
sons 880 
Defendant must have been in 

possession 880 

Demand for the office 888 

Demurrer 888, 896 

Disclaimer 894, 907 

Discontinuance 898 

Discontinuance by attorney-gen- 
eral 872 
Discretion of court 876. 877, 890 
Election on wrong day 891 
Eligibility of relator 887, 888 
Equity 860 
Error 910 
Estoppel 886 
Expiration of term 902 
Illegal dismissal from office 892 
Indigence and collusion, Eng- 
land 892 
Irregularities in election 892 
Joinder of relators 879 
Judgment 854, 888, 907 
Judgment of amotion 907 
Judgment by default 907 
Judgment, effect of 894 
Judgment for costs 908 
Judgment of ouster 894, 907, 908 
Judgment of ouster and admis- 
sion 908 
Judgment of ouster quousque 908 
Judgment on frivolous demur- 
rer 907 
Judgment unavailing 890 
Jurisdiction of supreme court 

of Alabama 866 

Jurisdiction of supreme court 

of Wisconsin 865 

Jury trial 903, 904 

Lateness of application 892 

Leave to file 870, 872 

Legality of charter 863 

Limitation of action as against 

commonwealth 882 

Limitation of time for applica- 
tion 881, 882 
Location of county seat 880 
Mandamus 857, 858 
Massachusetts 857 
Military office 857 



Secs. 
Information in the nature of a quo 
warranto — Continued. 

Motion to make certain 896 

Motion to quash 898 

Municipal election 858 

New trial 909 

Nil dicit 907 

Non usurpavit or not guilty 896 
Offices for which it does not 

lie 859 

Originally a criminal proceed- 
ing ; afterwards a civil action 855 
Parties 869 

Parties in Massachusetts 870 

Petition 884 

Plea 894, 896 

Plea amended 899 

Plea, replication, rejoinder, sur- 
rejoinder, rebutter, demurrer 

895, 897 
Plea to jurisdiction 896 

Pleading and practice, England 895 
Pleading double 895 

Practice 884 

Private prosecutor 872 

Public office only 879 

Qualifications of electors 863 

Kefusal 365 

Kefusal of officer to assume 

duties of office 863 

Refusal on grounds of public 

interest 890 

Refusal to grant in favor of can- 
didate for office of township 
clerk unable to write 892 

Relator 872, 879 

Relator in Georgia 873 

Relator introduced by amend- 
ment 879 
Relator's motives suspected 892 
Relator's title 908 
Replication 896 
Respondent's title 888 
Rights of relator in Wisconsin 878 
Rules of pleading 894 
, Rule to snow cause 893 
Rule to show cause, on applica- 
tion of attorney-general 883 
Sacrament 899 
Second information 894, 907 
Several defences 894 
Several pleas 899 
Several replications 897 
Specification of objections in 

rule 883 

Statute of limitations 899-901 

Statutory contest 861 

Statutory proceedings 868 

Statutory regulation of pro- 
ceedings 865 
Statutory tribunal 867 
Stipulations 906 



912 



Secs. 
Information in the nature of a quo 
warranto — Continued. 

Subpoena or venire facias first 
process at common law ; fol- 
lowed by distringas 893 
Supersedeas 864, 910 
Supplementary affidavits 886 
Supreme court of California 868 
Supreme court, United States 864 
Territorial judges 869 
Title of relator 887, 888 
Title of third persons 877, 880, 897 
Traverse 899 
United States 855 
Usurpation of public substan- 
tive office 856 
Venue changed 904 
Verdict 908 
Without relators 883 
Inhabitancy. 

Charter construed 42 

Definition 42 

Injunction 295 

Forged returns 587 

Registration 348 

To restrain an election 940 

To restrain canvass of votes 941 
To restrain collection of school 

tax 276 

To restrain collection of tax 

voted 945 

To restrain exercise of official 

functions, pendente lite 944 

To restrain grant of commission 942 
To restrain loan of municipal 

credit to individuals 283 

To restrain prosecution of con- 
test 946 
To restrain removal of office and 

records 943 

To restrain removal of officer 946 
To try title to office 943 

Inspection of papers. Statutory 

contests 843 

Inspection of poll books and bal- 
lots. Eefusal by canvassers 569 
Installments, voting by 462 

Insurrection. 

Florida senators 650 

Louisiana senators 649 

Insurrectionary states. Eight of rep- 
resentation in congress 108, 109 
Intendment. Jurisdiction 831 

Interest of judge. Disqualification 

for trial of contest 798 

Intention of voter 552 

Evidence 538 

Interlocutory proceedings. Statu- 
tory contests 843 
Intimidation and violence 467-471 
Intoxication. Officers of election 505, 508 
Intruders 380 



Secs. 

Irregularities 368, 369 

Acquiescence of voters 506 

New Mexico 506 

Not fatal 502-506, 600 

Precinct canvass 585 

Statutory contests 839 

Joinder of parties. Contest 815 

Judges. Executive appointment 706 

Judges pro tempore. Appointment 

by members of bar 697 

Judgment 

House of delegates 846 

Quo warranto 907, 908 

Statutory contests 845, 846 

Judicial notice. 

Custody of returns 765 

Day of election 765 

Election returns 635 

Executive appointments 765 

Expirations of terms of offices 765 
Papers on file 765 

Seal of court 765 

"Junior." Omission from ballot 544 

Jurisdiction. 

Affidavit 819 

Cases occurring before enact- 
ment of law 800 
Due filing of notice of contest 834 
Information and quo warranto 864 
Intendment 831 
Quo warranto 860 
Quo warranto information 862-868 
Service of notice of contest 837 
Statutory tribunals 801 
Summons not issued 836 

Juror in contested election case. 

Wager 495 

Jury. 

Contested election 795 

Power of legislature 793 

Statutory contest 831 

Jury trial. Power of legislature 301 

Justices of the peace. 

Appointments by 693 

Appointment of his own clerk 686 
Election of officers 694 

Legal votes. 

Exclusion 514-519 

Rejection 350 

Legislative power. Delegation 242, 243 

268 

Legislature 13, 296 

Choice of judges to fill vacan- 
cies 681 
Choice of senator; quorum; 

majority 665 

Choice of senators under act of 

1866 665 

Constitution 646-651 

Does it necessarily consist of 

two houses ? 292 

Dual organization, rival bodies 

651, 652 



913 



Secs. 
Legislature — Continued. 

Election of officers, reconsider- 
ation of vote 676 
Is a constitutional convention a 

state legislature ? 292 

Joint convention 655, 656, 663, 664 
Power of each house to elect its 

own officers 669 

Power of United States senate 
to question organization of 
state legislature 646 

Power over contests 793 

Power to elect executive or judi- 
cial officers generally 669 
Power to regulate state elec- 
tions 301 
Power to remove officers 678 
Qualifications for membership 

145-150 
Quorum for choice of officers 

677 
Rhode Island ; validity of pro- 
ceedings 647 
Right of representation 119 
Single body under Rhode Island 

charter 647 

State senators holding over 647 

Vacancies, how filled 680 

Liability of officers of election 639 

Allegations 642 

Evidence 643 

Federal statutes 642 

Massachusetts 641 

Receiving illegal votes 460 

Rejection of vote tendered un- 
der oath 461 
Local option 255 
Proclamation of result 629 
Qualifications of canvassers of 

votes 262 

Time of election 310 

Local option laws 243 

Majority 269 

Burgesses 572 

Dissent without voting of no 

avail 574, 575 

Lawful votes 276 

Legal voters 574 

Show of hands 692 

Votes actually cast 571, 573 

Votes cast for the particular 

office 575 

Votes cast on question submitted 

573, 575 
Malfeasance. Removal from 
office 708 

Mandamus. 

Adjudication of questions of 

fraud in county seat elections 830 
Admission to office 928, 929, 930 
Admission to office ; contempt 
of court 938 

58 



Secs. 
Mandamus — Continued. 

Admission to office ; oath of 
office ; appeal ; procedendo 939 

Admission to office ; return ; 
Maryland 937 

Amendment of notice of elec- 
tion 932 

Amendment of proceedings in 
supreme court > 936 

Amendment of record of elec- 
tion 931 

Applicant's status 914 

Approval or disapproval of offi- 
cial bond 934 

Canvass 916, 927, 943 

Canvass ; absence of specific 
legal remedy 920 

Canvass ; adjournment 920 

Canvass after adjournment of 
board 917, 918 

Canvass after alteration of re- 
turn 917 

Canvass after change in board 
of canvassers 912 

Canvass after declaration of re- 
sult 925 

Canvass after determination of 
result 919, 925 

Canvass after determination of 
result in favor of defendant 

911, 918 

Canvass ; amendment 938 

Canvass and certificates 911 

Canvass and certificate after in- 
duction of defendant into the 
office 911 

Canvass and certificate after 
issue of commission 913, 919 

Canvass and certificates in case 
of election to state legislature 919 

Canvass, answer 917 

Canvass by territorial governor 

926,927 

Canvass ; demand 938 

Canvass ; discontinuance of con- 
test 938 

Canvass ; existence of board 921 

Canvass for county, powers of 
state canvassers being judi- 
cial 921 

Canvass ; fundi officio 918, 920, 921 

922 

Canvass; Mississippi 919 

Canvass ; Missouri 922 

Canvass of returns 588, 589 

Canvass of supplementary re- 
turns 918 

Canvass of vote for members of 
state legislature after ad- 
journment of board 925 

Canvass of votes for represent- 
atives in congress 926 



914: 



Secs. 
Mandamus — Continued. 

Canvass of vote on question of 

removal of county seat 925 

Canvass of vote relating to 

fences 925 

Canvass ; power of court to cor- 
rect returns 924 
Canvass ; power of court to de- 
cide which is correct return 924 
Canvass ; proper defendant 923 
Canvass; repeal of statute cre- 
ating board 939 
Canvass ; secretary of state 922 
Canvass ; title of relator 920 
Canvassers 812 
Certificate 912, 914, 915, 919 
Certificate after adverse deter- 
mination of result 915 
Certificate after grant of cer- 
tificate to another person 912 
Certificate after grant of cer- 
tificate to defendant 911 
Certificate after issue of prior 
certificate to competitor of 
relator 915 
Certificate merely shifts bur- 
den of proof 915 
Certificate or commission after 

re canvass 911 

Certificate to member elect of 

state legislature 913, 914 

Certificate under prior election 911 
Certificate under protest 916 

Commission 405 

Commission by governor 927 

Common council 860 

Construction of precinct return 911 
Correction of clerk's abstract of 
votes for members of state 
legislature 919 

County seat, removal 916 

Defendants 936 

Delivery of books and papers to 

successors in office 934 

Discretion of court 915 

Double certificate 916 

Election or nomination ordered 

932, 933 
Equity having jurisdiction 934 

Inferior tribunal to adjudicate 

case of contested election 935 
Inferior tribunal to determine 
question of removal of county 
seat 916 

Information 857, 858 

Location of county offices 934 

Maintenance of possession of 

office 928 

Ordering nomination by mayor 933 
Pending injunction 927 

Power of court to judge of 
county returns for represent- 
ative in congress 926 



Secs. 
Mandamus — Continued. 

Premature 911 

Procedendo ; appeal 939 

Prosecuted in name of private 

person 936 

Record of election proceedings 931 
Registration of voter 354, 934 

Replication 936 

Restoration to office 929 

Returns of election for location 

of county seat 927 

Second election 377 

Signature of bill of exceptions 

in contested election case 934 
Statutory tribunal 801 

Title must be clear 911 

To admit to office 578 

To compel canvass 306 

To enforce registration 350 

Void election 914, 928 

Mandatory statutes 22, 502 

Appeals 848 

Criminal liability 498 

Day of election 310 

Elections 390 

Notice of contest 823 

Notice of election 385 

Officers of election 381-383 

Registration 361 

Time of election 301 

Mandatory and directory require- 
ments 497, 498, 600 
Manner of choosing state officers. 

Power of legislature 301 

Manner of election 268 

Marshals. 

Constitutionality of law 287 

United States. Interference 505 
Mayor and aldermen. Exercise of 

power of appointment 686 

Mayor and common council. Exer- 
cise of power of appointment 687 
Mayor, common council, and alder- 
men. Elections by 682-689 
Mayor of Dublin. Void election of 

treasurer 692 

Meaning of terms. 

' ' As hereinafter provided " 269 

" County officers " 303 

"Inhabitants" 399 

" Legislative authority " 304 

" Members of the legislature " 323 
" Near," in railway act 270 

" Prescribe " time, place, and 
manner of choosing represent- 
atives 293 
"Proceeding" 268 
" Regulate elections " 303 
' ' Thirty days after a vacancy 
occurs" ' 310 
Military elections 72, 73, 74 
Military governor. Time of elec- 
tion prescribed 298 



915 



Secs. 
Military interference 473-476 

Arkansas 648 

Military posts. When residence 

does not disqualify voters 64 

Military reservations. Eight of in- 
habitants to vote 18, 19, 20 
Minister of Gospel. Disqualifica- 
tions for office 187 
Minority candidates. 

England 556 

Indiana 558 

Kelator 879 

United States 559 

Minors when not qualified electors 22 
Minutes of canvassers 626 

Misconduct at polls. Proof 496 

Misconduct. Officers of elec- 
tion 499-501, 504 
Misrepresentations to voters. Can- 
didate 496 
Mistake. Precinct canvass 585 
Mode of election or appointment. 

Power to prescribe 129 

Mode of procedure, record, and re- 
turn. Kegulations generally 
directory 498 

Motion to dismiss or quash. Quo 

warranto 898 

Municipal aid. Form and substance 

of warrant 411 

Municipal aid to company 282 

Notice of election 389 

Number of votes required 260 

Power to order election 395 

Municipal aid to railway companies 

253,256,270-275, 345 
Burden of proof 274 

Company must be named 272 

Form of ballot 271, 275 

Form of proposition 274 

Proposition of company to be 

first published 273 

Recitals in bonds 279-281 

Registration 357 

Rescission of vote 274 

Single proposition for aid to 

several companies illegal 272 

Subscription mav be condi- 
tional 272 
When money required instead 
of bonds 273 
Municipal aid to railway companies 

and other associations 244-246 
Validation of prior vote 250 

Municipal bonds 245, 248, 254, 279 

Notice of election 398 

Time of election 310 

Void election 404 

Municipal corporation. Quorum 692 
Municipal donations and subscrip- 
tions 282 
Municipal loans to individuals 283 



Secs. 
Municipal officers. Appointment by 

judges not unconstitutional 690 
Muster 236 

Muster-rolls. Evidence 1035 

Naturalization. 

Application and proofs to be 
made in open court 31 

Certificate cannot be collater- 
ally impeached 40 

Certificates issued without a 
hearing by the judge in open 
court are void 31 

CitizenshijD not to antedate 
judgment 40 

Continuous actual residence un- * 
der act of March 3, 1813 32 

Defeated by temporary absence 
under act of March 3, 1813 33 

Disregard of certificate by 
judges of election 40 

Effect of clerk's certificate - 41 

Effect of judgment 38, 39, 40 

Facts to be proven to the satis- 
faction of the court 31 

Females 32 

Form of renunciation and abju- 
ration of former allegiance 32 

Impeachment of clerk's certifi- 
cate 41 

Inhabitants of New Mexico 34 

Of father makes minor son a 
citizen 35 

On]y courts of record have 
jurisdiction 30 

Persons having immigrated 
since June 18, 1812, and being 
adults, on their arrival, must 
declare their intention two 
years before naturalization 32 

Petition to be examined by the 
judge 31 

Powers and duties of state 
courts 29 

Power of congress 28 

Powers of courts judicial, to be 
exercised by the courts them- 
selves, and not delegated to 
clerks 31 

Preliminary application and 
oath may be received by clerk 31 

Presumption where vote of for- 
eign-born person has been re- 
ceived 37 

Proof at polls 36 

Proof in contested cases 761 

Record valid or invalid on its 
face 41 

Son of foreign subject 34 

Special provisions of state con- 
stitution 30 
Naval sites. Right of inhabitants 

to vote 18, 19, 20 



916 



Secs. 
Navy yards. Residence of voters 62 
Negligence. Precinct canvass 585 

New states. 

Election of senators and repre- 
sentatives prior to admission 107 
Number of senators and repre- 
sentatives 107 
New trials. Quo warranto 909 
Noisy disturbers of election 496 
Nominations. 

Election without poll 429 

England 427 

Objections 427 

Nomination papers. 

• " Alterations 428 

England 427 

Form and substance 426 

Non-user of office 240, 241 

Northstead 236 

Notice. Municipal aid to schools 276 

Questions submitted to electors 279 

Notice of contest. 

Additional, supplemental, sub- 
stituted 1004 
Affidavit 820, 821 
Allegations 96-1001 
Amendment, oath 1007 
Amendment, striking out 1007 
Arkansas 824 
Averments 833 
Blank ballots 827 
Commencement of time for fil- 
ing 834, 835 
Defendant 828 
Elections held on different days 1005 
Filing within time limited a ju- 
risdictional fact 834 
Form and substance 818, 822, 823 

996 
Fraud and corruption in elec- 
tion of United States senator "997 
Hour of filing 834 

Inclusive of first day and exclu- 
sive of last 834 
Jurisdiction of house of repre- 
sentatives 996 
Mandatory requirement 823 
Motion to set aside 839 
Names of voters 827 
Proof of service 1006 
Proofs to correspond with aver- 
ments 1001 
Publication 1005 
Kecord 834 
Requisites 997 
Revenue stamp 835 
Service and return 837, 1002 
Specification 996-1001 
Statutory provisions as to time 
of service not obligatory on 
house 1003 
Time of filing 1005 



Secs. 
Notice of contest — Continued. 

Time of service 836, 1004 

Time, place, manner and proof 

of service 834-839 

Waiver of objections 1004, 1007 
Notice of contest and answer. Al- 
legations 824, 826, 827, 828, 829 

831 
Notice of election. 

Constable de facto 399 

Date 394 

Dispensed with 394 

Disregard of statutory require- 
ments 386 
Duration of election 399 
England 311, 396 
Failure of selectmen to issue 395 
Ground for injunction 268 
Ignorance of law 394 
Illegal 384 
Insufficiency 403, 405 
Irregularities 388, 389, 394 
Meagre vote 394 
Place designated 399 
Posting attested copies 399 
Power of town clerk 395 
Power to issue 395 
Presumption 399 
Railway bonds 389 
Removal of county seat 401 , 402 
Second election 390 
Time and mode 403 
Time, place, and manner of post- 
ing 393, 406 
Unreasonable requirement 406 
Vacancy 390 
Void bonds 404 
Void election 384, 387 
Notice of meeting. Assessment of 

tax 420 

Notice of objection to registration. 

England 349 

Notice of poll 429 

Notice of result of election 275 

Notification of election 232 

Oath of office 221-223, 232 

Act of July 2, 1862 740 

Act of July 18, 1868 740 

Failure to take 233, 234 

Members of court, statutory 

contest 799 

Members of legislative bodies 

739, 740 
Officers cannot act until sworn 225 
Registration officers 347 

Senators and representatives in 
congress and in state legisla- 
tures 739 
Supervisor of registration 347 
Oath of officers of election 374-431 
Administered by unauthorized 
persons 434 



917 



Secs. 
Oath of officers of election — Con- 
tinued,. 
Certificate 434 

Failure to take oath 368, 431, 432 
Irregularity in administration 434 
Massachusetts, Virginia 435 

Proof of administration 434, 501 
Record of oath 434 

Oaths of voters 359, 361, 461 

Objections to nominations 427 

Appeal from decision 428 

Decision by returning officer 428 
Objection to registration 319 

Obligation of contract not impaired 
by statute limiting issue o'f 
bonds under authority of pre- 
vious election 273 
Office. 

Defined 126, 127 

Disqualifications : holding state 

office 165-170 

Disqualification. Polygamy 177 
Disqualification. Prior tenure 

of same office 171, 172 

Duration and end of term 194-211 
Induction, oath, bond 221-223 

" Legally filled " 556 

Power to create, change, abolish, 

prolong 128 

Power to fix and alter term 130 
Term fixed by constitution or 

law 191 

Vacancy 211-220 

Office holders. Disqualifications of 

voters 105 

Officer's. 

City and village 129 

Constitutional power to fill va- 
cancies 693 
County and township 129 
Excessive or insufficient number 

voted for 598 

Holding over 224-231 

House of commons ; how and 

by whom appointed 673 

House of lords, England ; by 

whom and how appointed 674 
House of representatives, United 

States. Election 669 

Neglect or refusal to qualify ; 

declination 232 

Not sworn 505 

Part only voted for 598 

Power to prescribe mode of elec- 
tion or appointment 129 
Power to prescribe qualifica- 
tions 131 
Power to reduce does not imply 

power to increase the number 129 
Bight to elect executive and ju- 
dicial officers 123, 124 
Officers de jure. Justification of 

acts 378 



Secs. 
Officers of election. Absence from 

posts 507, 509 

Active partisanship 507 

Appointment 426 

Candidates 371 

Citizenship 371 

Crime 287 

Be facto 379 

Different political parties 379 

Disqualification 375 

Electioneering 507 

Exemplary damages 638 

Intoxication 508, 585 

. Irregular or illegal appointment 

368, 369, 370, 372, 373, 383, 505 
Liability for receiving illegal 

votes 459, 460 

Non-residence 505 

Not duly chosen, sworn, or qual- 
ified 377 
Not sworn 508 
Oath of office 373 
Powers upon challenge of voter 459 
Proof of administration of oath 501 
Proof of official character 376 
Officers of registration. Duties 348 
Qualification 347 
Opening polls 415, 437, 438 
Ordinance 294, 295, 296 
Time of choosing members of 
congress 290 
Ordinance of 1787. Eight of terri- 
tories to representation in 
congress 112, 121 
Organized counties 331 
Pairing. Voters 462 
Pardon. Restores right to vote 767 
Parliamentary contests 967-980 
Abatement 1042-1044 
- Administration of oath to suc- 
cessful party 1042 
Amendment of return in Eng- 
land 1042 
Answer 1013 
Committee of the whole 1041 
Counsel 1041 
Debate in house 1041 
Dissolution of parliament 1042 
Evidence 1036 
Laches in prosecution 979 
Power of legislative bodies to 
judge of elections, returns, 
and qualifications of members 

967-970 
Regulations prescribed by 

house 1002 

Report of committee 1041 

Res judicata 1014-1020 

Right of member to vote in his 

own case 980 

Tie vote 1041 

Trial 1041 

Withdrawal of charges of fraud 979 



918 



Secs. 
Parliamentary contests — Continued. 
Withdrawal of notice or peti- 
tion 979 
Parol proof. Naturalization 761 
Partial election 477 
Parties. 

Arkansas 871 

Claimauts 816 

Incumbents 816 

Magistrates and counsellors 816 
Mississippi 871 

North Carolina 871 

Officers holding over 816 

Quo warranto informations 869-875 
State 793, 869 

Statutory contests 815 

Tie vote 816 

Paupers. 

Disqualifications of voters 100 

Not ratable polls 120 

Residence at almshouse ; right 
to vote 66 

Peerage. Disqualification of voter 104 
Penalties. Officers of election 287 

Pendency of contest. Bights of par- 
ties 631 
Pensions. Disqualifications for of- 
fice 187 
Perjury. Oath administered to vot- 
er by unsworn officer of elec- 
tions 461 
Personation. 

Evidence 493 

Repeating 493 

Petition. 

Blank ballots 827 

Names of voters 827 

Pennsylvania 827 

Quo warranto 884 

Petition and answer. Averments 

824, 826, 827, 828, 829, 831 
Petition for election. 

Fence regulations 400 

Special town meeting 402 

Petition or notice of contest and af- 
fidavits 817-833 
Place of election 308 
Change 329 
England 311, 330 
Indians 300 
Mandatory requirements 327 
Removal of polls 327, 328, 439, 443 
Plea. Form in quo warranto infor- 
mation 894 
Pleadings. Allegations 824 
Pleadings and proofs. 

Fraudulent conduct of officers 1001 

Massachusetts 1001 

Polls not kept open two hours 1001 

Ratable polls 1001 

Plurality of votes sufficient 571 

Police officers, justices, magistrates 129 

Political parties. Officers of election 379 



Poll excluded 501, 513 

Poll books 448 

Aggregate number of votes not 

shown 595 

Caption not filled up 595 

Certificate wanting 593 

Disposition 597, 636 

Evidence 756, 759 

Failure to transmit ; testimony 

of town clerk 593 

False and fraudulent ; crime 496 
Heading not filled up 595 

Impeachment 592 

Messenger 592 

Presumption 592 

Sealing omitted 503, 593 

Signatures 592 

Signature of each page 594 

Soldier's vote 592 

Transmittal 597 

Want of signatures 453 

Poll-books and ballots. Inspection 

refused 569 

Poll-books and tally sheets 592-595 

Polls. 

Closed before hour fixed by 

usage 522 

Closed too late 422 

Closing at midnight 522 

Exclusion of candidate 478 

Exclusion of friends of candi- 
date 501 
Not opened at one precinct 506 
Open after sunset 521, 523, 524 
Opened and closed too late 505 
Open only two hours 521 
Prematurely closed 523 
Presumption as to closing 521 
Purged 513 
Ratable 120 
Removal 463 
Polygamy. 

Disqualification for office 177 

Disqualification of voters 101 

Power of house of commons of the 
United Kingdom to judge of 
elections and returns of its 
members 968 

Power of removal. 

Due process of law 718 

Exemption from revision 709 

Incompetency, neglect of duty, 

malfeasance 718 

Municipal corporation 714, 715 

Offices embraced 715 

Statutory limitations 718 

Power to regulate time, place, and 

manner of holding elections 

284-308 
Practice. 

Contested election cases 813 

Quo warranto 884 

Precept for new election 424 



919 



Secs. 

Precinct canvass 525-600 

Assumption of judicial powers 525 
Ballots first counted and re- 
corded, in England 527 
Change in office of mayor of 
London, between election and 
canvass 525 
Constitution of board fixed by 

statute 525 

Custody of ballots, during re- 
cess, in England 526 
Deputy auditor 525 
Directory statutes 525 
Duties ministerial 525 
Manner of canvass 528-567 
Participation of candidate 577 
Preliminary duties of canvassers 527 
Quorum 525 
Regulations as to time and place 

directory in certain cases 526 

Supernumerary ballots de- 
stroyed 527 
Tellers appointed 577 
Time and place 526 
Time and place in England 526 
Unofficial assistants 577 

Precinct return. 

Correction 618 

Rejected by county canvassers 617 

President. 

Choice by electoral colleges 644, 645 
Consummation of appointment 700 
Power of appointment 699, 700 

Power of removal 711, 712 

President pro tempore. United 

States senate. Qualifications 670 

President's message. Evidence 1034 

Presidential electors. 

Form of ballot 644 

General ticket 644 

Power to regulate time, place 
and manner of choice 285 

Presumption. 

Acquiescence of those who do 

not vote 762 

Affidavits 762 

Army tally-sheets 763 

Ballot-box 764 

Ballots containing too many 

names 554 

Ballots received 764 

Canvassers 763 

Canvass of irregular returns 763 
Determination of result 763 

Effect of illegal votes 510 

Eligibility 559 

Knowledge of resignation or 

death of officer 764 

Official duty 763 

Personal identity 764 

Property qualification 764 

Qualifications of officer 762 

Qualifications of voters 360, 361 



Secs. 



Presumption — Continued. 




Record 


763 


Registration 


363 


Residence 


764 


Returns 


762 


Unregistered voters 


510 


Validity of statutes 


762 


Vote net challenged 


460 



Prima facie title to seat in house of 

representatives 985-996 

Privileges. Electors and officers 637 
Proclamation of election (see Noti- 
fication and Notice). 
Number of officers 392 

Power to issue 391, 395 

Question submitted to electors 397 
Vacancy 390 

Validity 731 

Proclamation of result 625 

Prohibition. Contested election 835 
Promissory note. Wager 495 

Proof of official character 376 

Proof of vote on school question 277 
Property qualifications for office 154 
Property qualifications of voters 83-85 
Proxy. Voting by 462 

Public buildings. Questions sub- 
mitted to electors 246, 278 
Publication. Contract submitted to 

electors 397 

Public office. 

Defined 126, 127 

Term 708 

Public officers. 

Elections by 695-697 

Quorum 682 

Purging poll 499 

Qualifications for office. 

Age 153 

Citizenship in general 138 

Citizenship not essential in 

territories 22 

Citizenship, president, vice- 
president, senators, represent- 
atives, and delegates 139, 140 
. Constitutional prescription of 
one qualification does not 
necessarily exclude legisla- 
tive prescription of others 131 
House of commons ; power to 

prescribe 131 

Member of state legislature, 

residence 145-150 

Neglect or refusal 232 

Officers of registration 347 

Power to prescribe 31 

Power to prescribe qualifica- 
tions does not imply power 
to remove disqualifications 
imposed by legislature 131 

President, vice-president, and 

members of congress 132, 141 
Prior tenure of office 155 



920 



Seos. 
Qualifications for office— Continued. 

Property 154 

Representatives and senators, 
prescribed by constitution, 
exclusive 133, 134 

Residence 151, 152 

Territorial delegates : power to 
prescribe 137 

Qualifications of voters. 

Age. 75 

Citizenship, residence, age, 
freedom, race, sex, property, 
payment of taxes 22 

Conflict charter and by-laws 7 

England 22 

Heads of families 93 

House of commons 7 

Mandatory statutes 22 

Payment of tax; Georgia and 

Rhode Island 91, 92 

Payment of tax ; Kentucky, 
Virginia, Pennsylvania, and 
Delaware 86-88 

Payment of tax; Massachu- 
setts and England 86, 89, 90 
Permanent abode 43 
Possession of elective franchise 
at certain date under former 
constitution 22 
Power to prescribe restricted, 
but not conferred, by consti- 
tution of Iowa 8 
Proof at polls 7, 458 
Property ; Virginia, Connecti- 
cut, Rhode Island, Massachu- 
setts, England 83, 84, 85 
Regulations generally manda- 
tory 498 
Representatives and presiden- 
tial electors 6 
Residence 23 
Residence in Scotland 43 
Race ; fifteenth amendment 79 
Race ; fourteenth amendment 78 
Race ; Ohio, Indiana, Con- 
necticut 80 
Race ; original constitution 76 
Race ; thirteenth amendment 77 
Restrictions of 14th and 15th 
amendments of federal con- 
stitution 11 
Sex ; England, Ireland, United 

States, Utah, Kansas 81, 82 

Statutory changes 7 

Test oath 94 

Questions submitted to popular vote 

244-246, 623, 792 
Form of ballot 258 

Joinder of distinct propositions 258 
Notice 257 

Number of votes required 

259-261, 623 



Secs. 
Questions submitted to popular 
vote — Continued. 
Power of legislature 792 

Rescission of vote 251 

Schools 276, 277 

Time of election 256 

Quorum 339 

Appointment 691 

Burgesses 683 

Commissioners 814 

Common council 686, 687 

House of lords and house of 

commons, Eugland 747 

House of representatives, United 

States 745 

Joint convention for election 

of United States senators 746 

Legislative bodies 741-748 

Municipal corporation 692 

Precinct canvassers 525 

Public agents 436 

Senate, United States 742-744 

Senate and house of represent- 
atives ; constitutional pro- 
visions 741 
State legislature 748 
State legislature, election of offi- 
cers 677 
Quo warranto 241, 854-910 
Acceptance of office one month 

before grant of writ 882 

Amicable proceeding 858 

Appeal, error 910 

Concurrent remedy 859-862 

Constitutional provisions 794 

Defence 899-901 

Difference between writ of quo 
warranto and information in 
the nature of quo warranto 

854, 855 
Electors of president and vice- 
president 869 
Error 910 
Form 882 
Form of disclaimer 894 
Form of plea 894 
Judgment 854, 907, 908 
Jurisdiction 860, 862-868 
Jurisdiction implied 865 
Jurisdiction of supreme court 

of Alabama 868 

Legislative power to substitute 

civil action 794 

Motion to dismiss or quash 898 

New trial 909 

Not writ of right 890 

Offices for which it lies 856 

Originally a civil writ 855 

Original writ 854 

Parties 869-875 

Parties in Arkansas 871 

Parties in Mississippi 871 



921 



Secs. 
Quo warranto — Continued. 

Parties in North Carolina 871 

Propriety of remedy 856-861 

Prosecutor in Ohio 871 

Kesignation of defendant 902 

Statutory provisions 860 

Statutory regulation of proceed- 
ings 865 
Stipulations 906 
Summons first process at com- 
mon law 893 
Trial 903-906 
Kace. 

Qualifications of voters ; fif- 
teenth amendment 79 
Qualifications of voters : four- 
teenth amendment 78 
Qualifications of voters; thir- 
teenth amendment 77 
Qualifications of voters ; Ohio, 
Indiana, and Connecticut 80 
Railway bonds. Lost returns 586 
Railway companies. Municipal aid 

244-246, 258 
Railway depots. Required by vote 

of electors 254 

Ratable polls 120 

Ratification of state constitution 294 
Read and write. Registration 350 

Rebel armies. Election prevented 298 
Rebellion. 

Disqualification for office 131 

179-181, 377 

Disqualification of voters 102 

Recess. Pending election 463-465, 503 

505 
Recitals. 

In bonds ; municipal aid to rail- 
way corporations and other 
companies 279-281 

In certificate of election 194 

Reconsideration of vote 277, 510 

Reconstructed states. Right of 

representation in congress 110 
Record 269, 584 

Amendment 277 

Defective 571, 580 

Error explained 752 

Evidence 759 

Statutory contest 831 

Schools 277 

Recount of ballots. 

Conditions 776 

Custody 787, 788, 790 

Exposure to tampering 787, 788 

Illegal 776 

Limitation 776, 779 

Massachusetts 778 

Notice 776 

Not under seal 788 

Proof of identity 787 

Time 776 



Secs. 

Recount of ballots — Continued. 

Void election 791 

Recovery of wager 495 

Recusant witnesses. Power of house 

to punish 1056, 1057 

Registration. 

Application of laws to particu- 
lar elections • 357 
Cancellation by governor 367 
Challenge, presumption 360, 361 
Change in limits of precinct 348 
Congressional elections 346 
Constitutionality 340-345 
Directory requirements 317 
Effect 344, 345, 353, 363-365 
England 351 
Essentials 358 
Failure, effect of 342 
Functions of officers, judicial 355 
Identification 451 
Injunction 348 
Irregularities 353 
Liability of officers 355 
Mandatory requirements 361 
Misconduct of candidate 366 
Municipal aid to railway com- 
pany 357 
Names stricken from list 451 
Notice of objection 349 
Objections and protests 349 
Omission 348, 350, 361 
Power of English parliament 342 
Power of legislature 340, 341, 342 
Presumption 363 
Proof 343 
Proof required of persons not 

registered 451 

Publication of list 356 

Refusal of officer 350 

Removal of county seat 357 

Representatives in congress 346 
Revision 351-355 

Right to vote 341 

Scotland 351 

Set aside by executive author- 
ity 367 
Several precincts 354, 366 
Special election 357 
Test oath 341 
Use of old list 348 
Utah 346 
Votes by persons not regis- 
tered 359-362 

Registration laws. Constitutional- 
ity 340, 341, 342 

Registration lists. 

Disposition 597, 636 

Effect 343, 366 

Evidence 756 

Extrinsic matters 364 

Publication 356 

Use at polls 341, 449, 450 



922 



Secs. 

Kegistration officers. Oath 347 

Eegular election 284, 312 

Rehearing. Contested election 813 

Rejection of votes 350, 460 

Canvass 516, 517 

Precinct canvassers 568 

Relator in quo warranto information 873 

Burgess 873 

Change in case of absence of 

original relator 875 

Estoppel 874, 876, 877 

Georgia 873 

Humble circumstances 875 

Individual grievance 879 

Inhabitant of borough 874 

Legal adviser of defendant 876 

Member of board 873 

Minority candidate 879 

Pennsylvania 873 

Surety of candidate 874 

Relief of disability. After election 556 
Remedies. Electors against offi- 
cers 638-642 
Removal of polls 327, 328, 439, 443 
Removal of public officers 708-721 
After qualification 715 
Appeal 721 
Charges and specifications 719 
Constitutional limitations 707 
Constitutional power of legis- 
lature 717 
Designation of cause 718 
Fixed terms 716 
For cause 717 
Grounds 717-719 
Indictment ; presentment 720 
Injunction to restrain 946 
Manner ; power of the courts 720 
Misbehavior 708, 714 
Misfeasance ; nonfeasance 717, 719 
Municipal corporation 716 
Notaries ; California 716 
Notice ; hearing 718, 719 
Notification 720 
Offices created by legislature 713 
Officers of election 372 
Power incident to power of ap- 
pointment * 711 
Rescission of appointment 720 
Revisory power 709, 710, 721 
Special constitutional and stat- 
utory provisions 709-721 
Supernumeraries 720 
Repeaters 493, 506 
Reply. Statutory contest 842 
Representation. 

Congress 106-118, 648 

Legislature of District of Col- 
umbia 122 
State legislatures ; right of 

people 119 

Territorial legislatures 121 



Secs. 
Representatives in congress. 

Power to prescribe qualifica- 
tions 132 
Prima facie title 982, 983 
Representatives in state legislature. 

Refusal to appear 232 

. Resolution of town meeting to 

elect 437-440 

Representatives and senators chosen 
by new state prior to admis- 
sion 107 
Republican government, Arkansas 648 
Res judicata. Qualification of voters 351 
Residence. 

A qualification of the voter 23, 43, 56 
Arsenals ; forts ; dock-yards 62 
Asylums for soldiers 63 

Cannot be added by statute to 
qualifications prescribed by 
constitution 57, 58 

Change involves both fact and 

intent 47 

Definition 42, 46 

Election district defined 56 

Evidence 59 

Family 48-52 

Indian reservation in Nebraska 61 
Indian reservation, when quali- 
fication for exercise of elec- 
tive franchise 60 
Intention 46, 47, 50 
Intention ; laborer 49, 51 
Intention ; school teacher 51 
Intention to be established by 

all the facts 47, 48 

Labor on highway 69 

Law authorizing vote, after 

removal, unconstitutional 56 

Legal right to return essential 
to constructive residence ; im- 
prisonment abroad fatal to 
such residence 53 

Less evidence requisite to es- 
tablish intent to remain than 
to remove 47 

Military reservations in terri- 
tories 65 
Paupers 67 
Period ascertained by excluding 

day of election 56 

Permanent abode 43 

Qualification for office in gen- 
eral 151, 152 
Qualification for office of mem- 
ber of state legislature 145-150 
Qualification for the offices of 
president, vice-president, and 
members of congress 141 
Railway laborers 68 
Representatives, senators, am- 
bassadors, railroad laborers, 
clergymen 46 



# 



~\ 



\# 



923 



Secs. 
Residence — Continued. 

Residents of villages cannot 

vote at town meeting 56 

Residents on unincorporated 
plantations, in Massachusetts, 
not voters 56 

Right of paupers, at almshouse, 

to vote 66, 67 

Soldiers 71 

Statutory provision construed 43 
Statutory provision unconstitu- 
tional 57 
Students 69, 70 
Temporary absence 53, 54 
Where exclusive jui'isdiction of 
United States terminates be- 
fore the election 64 
Resignation. 235-240, 313 
Acceptance 235 
Canadian parliament 237 
Representation in congress 318 
Revocation 238 
Senator of the United States 239 
To take effect in futuro 238 
United States 238 
Withdrawal 238 
Return of election 425 
Amendments 590, 591 
Army, irregularly transmitted 616 
Candidate 582 
Canvass lawful, or not lawful 

614-616 
Caption and certificate 581 

Contradicted 771 

Copy of town record 581 

Courts " will go behind " them 771 
Delay in transmission 588 

Difference between powers of 
house of representatives and 
powers of house of commons 729 
Discrepancy between returns 

and vote actually cast 585 

Discrepancy, duplicates 585 

Disposition 636 

Double 583, 626, 631 

Effect and validity 581 

Errors 585 

Evidence 759 

Failure of precinct officers 586 

Failure to make return of a pre- 
cinct 586 
Failure to transmit oaths of of- 
ficers of election 588 
For different candidates on same 

sheet 584 

Forged 587 

Form, substance, signature, ef- 
fect 581-583, 628 
Fraud 596 
Fraudulent votes 496 
Heading defective 585 
Irregularities 585, 599, 629 



Secs. 
Return of election — Continued. 

Irregularities in transmittal 616 
Loss 586 

Manner, England 581 

Messenger . 589 

Ministerial acts 581 

Name of railway company omit- 
ted 585 
Not sealed 589 
Opened in transit by unofficial 

persons 616 

Precinct, correction 618 

Precinct, not transmitted 617 

Precinct ; signature 615 

Prepared by candidate 505 

Quorum 582, 583 

Rejected 501 

Repetition of vote 585 

Requisites, England 581 

Sealing omitted 585 

Signature 581, 583 

Signatures preceding number 

of votes 585 

Subsequent signature 582 

Supplemental 615 

Tabulated statement 615 

Time of transmittal 588 

To whom made, England 581 

Transcripts erroneous 585 

Void for uncertainty 581 

Return of election warrant. Sol- 
diers' bounty 393 
Returning officer. 

Casting vote, England 576 

England 421 

Revenue stamp. Notice of contest 835 

Revising barrister. England 351 

Right of local self-government. 

Denial or evasion 124 

Right to choose representatives in 

congress 106 

Right to elect officers, in general 106 
Rival legislatures 651, 652 

Roll of house of commons. England 728 
Roll of house of representatives 724 
Organization of house 735 

Sacrament not taken. Disqualifica- 
tion for office 183, 556 
Salary. 

Absence 1064 

Change 1069 

Contract 1068 

Extra services 1063 

Incident to title 1061 

Ineligible officers 1065 

Liability to dejure officer 1062 

Office cum onere 1063 

Outgoing officer 1066 

Pendency of contest 1064 

Reduction by officer 1068 

Sale of fees or salary 1067 

Second action 1066 



924 



Secs. 

1063 
1068 
1065 
1064 
1066 



Salary — Continued. 
Statutory grant 
Statutory reduction 
Successful party 
Successive incumbents 
Suspended officer 
Term shortened by constitu- 
tional amendment 1065 
Sale of office. Disqualification for 

office 178 

Schedule 294 

Ratification 316 

Time of choosing members of 

congress 290 

Schools. 

Appropriation without appor- 
tionment illegal 276 
Questions submitted to elect- 
ors 276,277 
Record 277 
Void election 395 
School house. Popular vote 258 
School trustees. Election by town 

trustees 685 

Second election 322 

Secrecy of ballot 535 

Public policy 766-768 

Secretary of state. Executive ap- 
pointments 701 
Senate, United States. 

Permanent president 670 

Powers of president pro tern- 
pore 671 
President pro tempore; election 670 
President pro tempore. Qualifi- 
cations 670 
Senators. 

Appointment by governor 666-668 
Choice by concurrent vote of 

two branches of legislature 654 
Election, act of 1866 660-665 

Election and appointment 646-668 
Election ; bribery 654 

Election ; candidate voting for 

himself 654 

Election ; directory regulations 654 
Election ; ineligibility of major- 
ity candidate 659 
Election; joint convention 663, 664 
Election; joint convention ; 

blank votes 657 

Election ; joint convention ; plu- 
rality of votes 658 
Election, quorum 654 
Election, quorum, plurality, mi- 
nority candidate 657-659 
Election ; state regulations 650 
Resignations 653 
Time and place of election 662 
Vacancy 197 
Vote in separate houses and in 
joint convention 653-656 



Secs. 
Senate and house of representatives 
of the United States. Power 
to judge of elections, returns, 
and qualifications of mem- 
bers 967 
Senators and representatives. Power 
to regulate time, place, and 
manner of choice 285-287 
Service and return ; notice of con- 
test 837 
Sex; qualification of voters 81,82 
Social persecution. Validity of elec- 
tion 472 
Soldiers' bounties. 

Articles in warrant 416 

Return of election warrant 393 

Soldiers' vote in the field 72, 73, 74, 304 

382 
Polls prematurely closed 522 

Speaker of house of commons. 

Manner of election 672, 673^ 

Term of office 673 

Speaker of house of representatives. 
Election 669 

Qualifications 670 

Speaker or prolocutor of house of 

lords. Qualifications 674 

Special elections 268, 284, 325 

Governor 299 

Notice 385, 390 

Registration 357 

Time 312, 320 

Stake holders. Elections 495 

State government. Louisiana and 

Virginia senators 649 

State legislatures. 

Organization 730 

Right of representation 119 

State officers. Power to regulate 
time, place, and manner of 
election 301 

Statutory contest. 

Adjournment 799 

Answers 841 

Casus omissus 811 

Charter elections 795 

Commencement of proceeding 836 
Common council 846 

County seats 795 

Effect on other remedies 811 

Equity procedure 838 

House of delegates 811, 846 

Inspection of papers 843 

Interlocutory proceedings 843 

Judgment 845 

Jurisdiction 802-810 

Jurisdiction exclusive 812 

Offices subsequently created 817 
Parties 815-817 

Quo warranto information not 

excluded 861 

Trial 844 



925 



Secs. 

Statutory contest — Continued. 

Tribunal 793-797 

Statutory tribunal. 

City council 867 

Decision final 801 

Duration 813 

General assembly 811 

Judicial functions 860 

Jurisdiction 801-804 

Presumption as to powers 867 

Quo warranto 860 

State senate 807 

Time limited 801 

Stipulations of parties 1038, 1039 

Stock laws. Popular vote 252 

Stoke 236 

Submission of case. 

Jurisdiction 804 

Quo warranto 871 

Submission of question to electors. 
Authority to be strictly pur- 
sued " 247-249 
Declaration of result and rec- 
ord 263 
Effect of vote 253 
Form of ballot 258 
Military bounty 265-267 
Notice 257 
Notice of election 385 
Petition 255 
Power of town meeting to vote 

money 264 ' 

Reconsideration of vote 277 

Rescission of vote 251 

Time of election 256 

Subscriptions to railway stock. Sev- 
eral under one act 270 

Suffrage, right of. 

By whom exercised 2 

Choice of officers 4 

Defined 1 

Determination of questions sub- 
mitted to electors 4 
District of Columbia 15 
Exercise regulated by law 5 
Exercised only by a minority of 

the members of the state 2 

Exclusion of females 16 

Federal constitution 6, 10-15 

Fundamental principles 3 

Not inalienable right 2 

Not natural right 2 

Power to determine who may 

exercise the right 2 

Restriction to part of officers 

chosen 8 

State elections 7, 18 

Territorial elections 7 

Unconstitutional statutory pro- 
visions 8 

Summary proceedings. Louisiana 796 

Summary remedy. Books and pa- 
pers 853 



Secs. 
Summons. 

Neglect of clerk 835 

"Waiver of objections 836 

Superannuation 240 

Superintendent of school fund. 

Qualifications of electors 692 

Supervisors of elections. 

Constitutionality of appoint- 
ments by state judges or fed- 
eral judges 690 
Constitutionality of law 287 
Interference with 467 
Supervisors of registration 347 
Supplementary returns 590 
Supreme court of state. Jurisdic- 
tion in quo warranto 864 
Supreme court, United States. Quo 

warranto 864 

Suspension and interdict. Scot- 
land 686, 943 
Tally sheets 448, 453, 592-595 
Caption not filled up 595 
Disposition 597, 636 
Not filed 595 
Part of return » 595 
Presumption 597 
Soldiers' votes 453 
Tax. 

Donation of municipal bonds 398 
Question submitted to people. 
Vote required 260 

Tax lists. Number of voters 402 

Tennessee representatives. Time of 

election 317 

Tenure of office. Notice of election 399 
Territories. 

Right of representation in con- 
gress 111-117 
Right of representation in con- 
gress, under ordinance of 1787 

112 
Right of suffrage in 14 

Territorial delegates. 

Power to prescribe qualifica- 
tions 137 
- Rights under ordinance of 1787 

112,113 
Territorial officers not necessarily 

citizens of United States 22 

Territorial legislatures. Right of 

representation 121 

Term of office. 

Commencement 192, 193 

Duration and end 194-211 

Fixed by constitution or law 191 
Test oath. Registration 341 

Tie vote 624 

Determination of result 576 

Information in the nature of a 

quo warranto 858 

Parties 816 

Second election 576 

Vacancy 576 



926 



Secs. 
Time and place of election. 

Fixed by selectmen without au- 
thority of law 307 
State officers 309-313 
Time for choosing senators or repre- 
sentatives of the United States 
fixed in state constitution, 
ordinance, or schedule 290, 293 
Time for official act. Directory re- 
quirements 309 
Mandatory requirements 310 
Time of congressional election may 
be fixed on day of state elec- 
tion 288, 289 
Time of election. 

Constitutional provisions ex- 
clusive 306 
Executive officers in Kansas 323 
Mandatory requirements 301 
Power to fix cannot be dele- 
gated 299 
Representatives and delegates 

in congress 296, 314-319 

Representatives in congress 

from Iowa 315 

State officers 320-326 

Territory of Indiana 319 

Time of special election. Pennsyl- 
vania 318 
Time, place, and manner of elec- 
tions 284-308 
Time, place, and manner of elect- 
ing representatives. Regula- 
tion by congress > 297 
Time, place, and manner of elect- 
ing state officers. Power to 
regulate 301 
Town meetings. 

Functions in Wisconsin 308 

Mode of proceeding 308 

Transcripts. Town meeting 584 

Treason. Disqualification for office 

179-181 
Trial. 

Quo warranto 903-906 

Statutory contests 844 

Tribunal. 

Power of legislature 793 

Statutory contests 793-797 

Trustees. Elections by 691, 692 

Two elections. West Virginia 316 

Unauthorized persons acting as can- 
vassers 577 
Unconstitutional provisions in elec- 
tion laws. Effect 303 
Undue influence 472 
Unregistered voters 512 
Oaths at polls 359, 361 
Presumption 510 
Usage. Town meeting 403 
Usurpation by officers of election 500 
Usurpation of functions of canvasser 577 



Secs. 
Usurpers and intruders 380 

Vacancy in office 211-220, 233, 234, 239 

313 
Constructive notice 405 

Election 386 

Executive appointment 704 

House of commons 422 

House of representatives of the 

United States 299 

Member of house of commons 
of the United Kingdom ap- 
pointed to executive office 422 
Notice of election 399 

Power of removal 716 

Proclamation 390 

Representative in congress 318, 332 
State office 320, 324 

State representation 285 

Time for election 310 

Violence and intimidation 467-471 

Viva voce vote 269 

Change of vote 462 

Change by oral testimony 761 

Number of votes necessary for 
adoption of propositions sub- 
mitted to electors 259 
Town meeting 308 
Void election 385 
Absence of officer 509 
After refusal to submit motion 

to adjourn 523 

After vote to adjourn 523 

Double election 630 

Exclusion of legal votes 

414, 515-517 
Fraud 596 

Illegal votes 510 

Irregularities 501 

Irregular notice 395 

Mayor of Dublin not summon- 
ed 692 
More votes cast than canvassed 515 
Municipal bonds 404 
Notice 390 
Notice defective 420 
Polls not opened at one of the 

precincts 506 

Polls prematurely closed 523 

Power to hold new election does 
not involve power to adjudi- 
cate contest 684 
Representatives in state legisla- 
ture 437-439 
Split ballots 528 
Want of notice 405 
Voters. Mode of ascertaining 
whole number 402 
Votes. 

By persons " in their represent- 
ative capacity" 691 
' ' Cast up and set down in writ- 
ing " 570 



927 



Secs. 



599 

516, 517 

627 



517 



517 

518 



Votes — Continued. 

Excessive number 

Not cast, canvass of 

Number 

Unlawfully excluded, canvass in 
Arkansas 

Unlawfully excluded, facts to 
be established 

Unlawfully excluded, remedy 

Whole number, majority, plu- 
rality, tie vote 571-576 

Wrongfully rejected, canvass in 
England 517 

Voting. Completion of act 957 

Wagers 494, 495 

Action for recovery 494 

Disqualifications of voters 101 

Offence statutory 494 

Waiver by parties 1038, 1039 

Warrant for town meeting. 

Amendment 410 

Conformity to statute 407 



Secs. 
Warrant for town meeting— Cont'd. 

Form and substance 408, 411 

Irregularities 399 

Mode of service 403 

Omission of article for choice of 

representative 410 

Proof of publication 406 

West Virginia. Two elections 315 

Withdrawal of candidate 466 

Witness. Refreshing memory 761 

Writs of election. 

British parliament 728 

England, Scotland, Ireland 421 

Form and substance 421 

Power of governor 424 

Prior election void 424 

Return to house of commons 423 
Returning officers 441 

Returning officers, Virginia 424 

Vacancies in house of commons 422 
Warrant of speaker of house of 
commons 422 



